Monday, September 9, 2013

The Minnesota DWI Case Of The Week is   State v. Freeman, (Minnesota Court of Appeals, Unpublished, decided September 9, 2013), which stands for the proposition that the test will not be suppressed even though the police eavesdropped on the defendant's conversation with his attorney. 

In Freeman, the Defendant was arrested for DWI and was taken to the Cass County Jail for alcohol testing.  Prior to submitting to a breath test at the jail, the Defendant asked to consult with counsel.  Mr. Freeman contacted an attorney by telephone and the attorney advised the Defendant to submit to testing.  The attorney-client consultation occurred over a speaker phone and both sides of the consultation were recorded by the arresting officer.

The Defendant moved to suppress the breath test result arguing that his right to counsel had been violated by recording his conversation with his attorney.  The District Court granted the motion to suppress but on the State's appeal of the ruling, the Minnesota Court of Appeals reversed.

In its decision reversing the District Court, the Minnesota Court of Appeals noted, "An individual who is in law-enforcement custody generally has the right to 'a private interview' with an attorney or 'private telephone access' to an attorney.  But the Minnesota Supreme Court has rejected the argument that law enforcement must provide a driver exercising his limited right to pretest counsel with a private telephone or private room in which to call an attorney, reasoning that 'given the limited nature of the right to counsel in this context, police do not have to provide a DWI arrestee with a private telephone because the arrestee’s rights will be sufficiently protected by the subsequent exclusion of any overheard statements or any fruits of those statements.' Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992). The supreme court noted that 'proper testing procedures' generally require that the officer remain in the presence of an arrestee in order to impeach any later testimony by an arrestee who submits to testing that ingestion of something at the station might have affected the test results." 

"As to remedies, precedent establishes a distinction between cases in which the police refuse to allow an attorney-client consultation prior to testing and cases in which the police allow a consultation but do not honor the driver’s statutory right to a private consultation. When law enforcement refuses to allow a driver to contact an attorney and the driver subsequently submits to chemical testing without the benefit of legal advice, suppression of the test results is the appropriate remedy. See State, City of Belle Plaine v. Stradcutter, 568 N.W.2d 545, 548 (Minn. App. 1997).  But the remedy is narrower when the police allow a driver to telephone an attorney but do not provide the driver with privacy during the call. In such cases, the remedy is suppression of any overheard statements, as well as the fruits of those statements, and not suppression of the test results. See Campbell, supra."

Thus the District erred when it suppressed the breath test results and its ruling is reversed.

MORAL OF THE STORY: Talk softly because you never know who may be listening!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer