Tuesday, August 27, 2019

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

The Minnesota DWI Case Of The Week is State v. Howell (Decided August 26, 2019, Minnesota Court of Appeals, Unpublished), which stands for the proposition that there is no right to counsel, even for a DWI refusal, when the test is requested pursuant to a search warrant.  I can't blame the Court of Appeals for this decision as they are just following the recent Minnesota Supreme Court decision of State v. Rosenbush.  The problem is Rosenbush ( a 4 to 3 decision) makes no sense.

In Howell, the Defendant was arrested for DWI and while at the jail, the officer obtained a search warrant for Howell’s blood. The officer advised Howell that refusal to submit to blood-alcohol testing is a crime and asked Howell if he would submit to a blood or urine test. See Minn. Stat. § 171.177, subd. 1 (Supp. 2017) (“At the time a blood or urine test is directed pursuant to a search warrant under sections 626.04 to 626.18, the person must be informed that refusal to submit to a blood or urine test is a crime.”). Howell asked for a lawyer, but was not allowed to contact one. Howell refused to provide a sample for testing.

Howell contended that the police violated his limited right to counsel under the Minnesota Constitution because he requested counsel before the police asked him to submit to chemical testing and the police did not accommodate that request.  

The Minnesota Court of Appeals rejected Howell's argument stating:

"After oral argument in this case, the supreme court decided State v. Rosenbush, which squarely addresses the issue presented in this case: whether a driver arrested on suspicion of DWI and presented with a search warrant authorizing a search of his blood has a limited right to counsel under article I, section 6 of the Minnesota Constitution, as recognized in Friedman, before deciding whether to submit to chemical testing."
***
"The supreme court agreed with the state and held that the limited right to counsel established in Friedman does not apply when an individual is asked to submit to a blood test pursuant to a warrant. Id. at * 1, *5-6. The supreme court reasoned that “the existence of a search warrant eliminates many of the concerns that led [it] to expand the right to counsel in Friedman,” explaining that when a suspected impaired driver is presented with a search warrant for a blood or urine test, “the driver is not meeting his adversary in the same manner as the driver in Friedman because a neutral judicial officer has determined that the police may lawfully obtain a sample of the driver’s blood."

What the Supreme Court in Rosenbush totally fails to address is the rationale for Friedman, to wit:  When a person has been placed under arrest for DWI and been asked to submit to testing, the arrestee is facing IMMEDIATE CONSEQUENCES for their testing decision.  If they refuse, they immediately lose their license for one year and are facing prosecution for the gross misdemeanor crime of refusal.  It was these "immediate consequences" of the testing decision that led the Supreme Court in Friedman to hold that a person has the right to consult with counsel prior to testing.  The fact that a "neutral and detached" magistrate has reviewed the warrant application has nothing to do with the testing dilemma facing the person under arrest for DWI.  

Rosenbush is a stupid decision. Period.

Moral Of The Story: You can be the supreme court and still not get it right.

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


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