Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Littlewind (Decided February 12, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if there is a clear violation by the police of an arrestee's pre-test right to counsel, a defense attorney is incompetent if he fails to file a motion to suppress.  I wholeheartedly agree!!

In Littlewind, the Defendant was arrested for drunk driving and the police read him the implied-consent advisory, but they refused to allow him to speak with an attorney after he repeatedly asked for one. Littlewind refused to submit to a chemical test. 

Representing Littlewind in his trial for both driving while impaired and chemical-test refusal, Littlewind's attorney never moved the district court to suppress the evidence of his refusal. After the jury convicted Littlewind, he petitioned unsuccessfully for postconviction relief, arguing that he received ineffective assistance of trial counsel. 

The Minnesota Court of Appeals reversed the District Court, ruling that, "Failing to move to suppress evidence related to Littlewind's test refusal fell below an objective standard of reasonableness, so we reverse, invalidating his conviction for test refusal."

The Court of Appeals explained it ruling as follows:

"Because the failure to litigate a suppression motion is Littlewind's principal allegation of ineffectiveness, he must prove that his suppression claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, All U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986)."

"We begin with the merit of the hypothetical suppression motion. Applying the state constitution, "an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). It is not enough that police officers inform the person of this right, "the police officers must assist in its vindication." Id. (quotation omitted). The officers meet this duty by providing a telephone and allowing a reasonable period for the person to reach and speak with an attorney. Id. The district court must suppress evidence obtained in violation of the right to counsel in the implied-consent context. See State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998)."

"The officers here undisputedly did not provide Littlewind a telephone or give him time to contact an attorney, but the state maintains that in this case providing a telephone was unnecessary. This is because the right to consult with counsel before submitting to chemical testing is not absolute. The implied-consent law requires a driver not to frustrate the implied-consent process. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003). The postconviction court agreed with this position, concluding that "[t]he facts of the instant case undoubtedly indicate that Petitioner forfeited his limited right to an attorney through his unreasonable and uncooperative behavior." Our caselaw does not support the conclusion."

"The defendants in Collins and Busch, unlike Littlewind, prevented the implied-consent process from being completed. That process includes an officer's reading of the complete advisory accompanied by the officer's request for a chemical test, the defendant's opportunity to contact an attorney before deciding whether to submit to a chemical test, and the defendant's response to the officer's request for a chemical test. Here, police were able to present the implied-consent advisory completely and Littlewind plainly and repeatedly requested to speak with an attorney. As the district court put it, Littlewind "unequivocally requested an attorney after the implied consent advisory was read." That police read the complete implied-consent advisory and Littlewind then requested an attorney undermines the notion that Littlewind frustrated the implied-consent process."

"To demonstrate that he received ineffective assistance of counsel, Littlewind must also show that his attorney performed below an objective standard of reasonableness. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). To do so, he must overcome the strong presumption that his attorney's action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104. S. Ct. at 2065. We see no strategic benefit to foregoing a meritorious motion to suppress the most critical evidence in a test-refusal trial, and the state does not offer any benefit. Because his trial counsel's performance fell below an objective standard of reasonableness, Littlewind was denied his Sixth Amendment right to the effective assistance of counsel. We therefore reverse his test-refusal conviction."

Moral Of The Story: If you have been arrested for a Minnesota DWI or DUI, you should hire an attorney who knows what they are doing!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.