The Minnesota DWI Case Of The Week is State v. Nelson (decided September 17, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person arrested for a DWI does not have the right to have an attorney present to witness the testing procedure.
In Nelson, the Defendant was arrested for a DWI and was read the Minnesota Implied Consent Advisory informing him of his right to consult with counsel prior to testing. Mr. Nelson told the arresting officer that he wished to speak to his own attorney and was given access to a telephone. Mr. Nelson was able to contact his attorney and after speaking to the lawyer, Mr. Nelson hung up the telephone. The officer then asked Mr. Nelson if he wanted to call another attorney, to which Mr. Nelson replied that he did.
The officer provided appellant with several phonebooks, but appellant made no attempt to contact an attorney. The officer advised him a few more times to contact an attorney, but appellant did not do so. The officer ended appellant's phone time at about 4:45 a.m. and asked him if he would take the breath test. According to the officer, appellant stated that he "would not without his attorney present." The officer told appellant that he had to make the decision on his own, but appellant reiterated his prior response. The officer told appellant that he would consider appellant's response as refusing the test and wrote, "[h]e wants his attorney, even though he already spoke to his attorney" on the implied-consent advisory form as the reason for refusal.
The State of Minnesota charged appellant with one count of refusing to submit to chemical testing under Minn. Stat. § 169A.20, subd. 2 (2016), along with several other counts. After the trial, the jury found appellant guilty of refusing to submit to chemical testing, but acquitted him of the other charges.
On appeal the Appellant argued that the evidence was insufficient to support the jury's guilty verdict because he was exercising his right to have a reasonable opportunity to obtain legal advice rather than refusing the test, and therefore did not demonstrate an "actual unwillingness" to submit to a chemical test. The Court of Appeals was not persuaded, noting:
""[Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (emphasis added), review denied (Mi\m. Mar. 15, 2011). Whether a driver refused to submit to chemical testing is a question of fact, which we review under the clearly erroneous standard. Lynch v. Comm 'r of Pub. Safety, 498 NW.2d 37, 38-39 (Minn. App. 1993)."
"Appellant told the officer that "he would not [take the test] without his attorney present." Appellant's statement is direct evidence indicating his refusal to take the test and is sufficient evidence supporting the jury's guilty verdict."
"Appellant argues that his statement is insufficient to support the jury's guilty verdict because his statement indicated that he was exercising his right to have a reasonable opportunity to obtain legal advice, which includes having an attorney present during the test. Appellant's argument is unavailing. A driver has a state constitutional 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). However, such right is "limited" in DWI cases, and may be vindicated when a police officer provides the driver with "a telephone and a reasonable amount of time to contact and speak with an attorney." Gergen v. Comm 'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). In Sturgeon v. Comm V. of Pub. Safety, we held that this right does not include having counsel "present during the test itself, even though counsel was already present at the station before the test was administered and no delay would result," as long as the driver is allowed to use a phone and have a private conversation with his attorney."
Moral Of The Story: While absence may make the heart grow fonder, it does not justify a refusal to submit to DWI testing.
If you or a loved one have been arrested for a Minnesota DWI or are facing the DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and forfeiture questions.
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