In Krech, the Defendant was arrested for DWI and was read the Minnesota Implied Consent Advisory, which tells the person under arrest that they have the right to consult with an attorney prior to testing. Mr. Krech stated that he wanted to call an attorney so the police gave him access to a telephone and multiple phone books starting at 2:37 a.m.
At 2:44 a.m., Mr. Krech made a single phone call to an attorney and left a voice-mail message. At 2:48 a.m. the police suggested that Mr. Krech might want to use the phone books to try and contact another attorney but Mr. Krech declined to do so.
At 2:55 a.m., Mr. Krech was told he had a "couple more minutes" to reach an attorney and at 3:02 a.m., Mr. Krech was told his time was up. Mr. Krech subsequently submitted to a breath test and the result revealed an alcohol concentration level of .12.
Mr. Krech subsequently challenged the revocation of his driver's license and argued that his right to counsel prior to testing had been violated. The District Court upheld the license revocation and on appeal, the Minnesota Court of Appeals affirmed the District Court, stating:
"A driver who is
suspected of driving while impaired has a limited right to consult with an
attorney before deciding whether to submit to chemical testing. (citation omitted) The driver's limited right to consult with an attorney
prior to testing is vindicated if the person is provided with a telephone
prior to testing and given a reasonable time to contact and talk with
counsel. (quotation omitted). If the driver is unable to
contact an attorney within a reasonable time, the person may be required
to make a decision regarding testing in the absence of counsel."
"Several factors are relevant to the question whether a driver was
given a reasonable opportunity to consult with counsel. These factors include
whether the driver made a good-faith and
sincere effort to reach an attorney, Palme v Commissioner of Pub. Safety,
541 N.W.2d 340, 345 (Minn. App. 1995), review denied (Minn. Feb. 27,
1996), the time of day when the driver attempted to contact an attorney, Kuhn,
488 N.W.2d at 842, and the length of time the driver has been under arrest.
Id. In this case, these factors lead to the conclusion that Krech had a
reasonable opportunity to consult with counsel.
First, as the
district court noted, Krech declined to call other attorneys after leaving a
voice-mail message for one attorney. This court has differentiated between
"refusing to contact more than one attorney" and making a
"good-faith and sincere effort" to call multiple attorneys. Id. at
841; see also Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 810
(Minn. App. 1998) (concluding that driver's limited right to counsel was
vindicated in part because he refused to contact more than one attorney), review
denied (Minn. Feb. 18, 1999). Krech's insistence on contacting only one
attorney demonstrates a lack of a
good-faith and sincere effort to reach an attorney.
Second,
we acknowledge that "[a] driver should be given more time in the early
morning hours when contacting an attorney may be more difficult." Kuhn,
488 N.W.2d at 842. But this factor
is less relevant if a driver leaves a message for only one attorney because attorneys
are unlikely to receive and return telephone calls in the early morning hours. See
Palme, 541 N.W.2d at 345 ("A driver cannot be permitted to wait indefinitely
for a call that may never come.").
Third, Krech was
given a reasonable amount of time in which to contact an attorney. This court
has held that it was reasonable for an officer to terminate a driver's attorney
time after 29 minutes because the driver actually reached one attorney, was
told that another attorney would call him back, and did not attempt to contact
other attorneys. Id. Similarly, in this case, Krech was given 25 minutes
to reach an attorney and declined to call other attorneys even though he had no
particular reason to believe that the first attorney would return his message
at 3:00 a.m. Krech contends that his preferred attorney would have heard a busy
signal if Krech had used the telephone to call other attorneys. But the district
court found that the record is unclear as to whether Krech included a call-back
number in his voicemail message, and Krech has not shown that the district
court clearly erred in that finding. In any event, Krech was aware that he had
a limited time in which to reach an attorney and chose to wait for one attorney
to return his message rather than to increase his chances of obtaining legal
advice by calling multiple attorneys.
Based on the undisputed facts, we conclude that Krech was given a
reasonable opportunity to consult with an attorney. Thus, the district court
did not err by concluding that Krech's limited right to counsel was vindicated."
Moral of the Story: You have a limited right to talk to a lawyer prior to testing - But not necessarily the one you want the most.
If you or a loved one has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.
