Monday, August 17, 2015

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Pence v. Commissioner of Public Safety (Decided August 17, 2015, Minnesota Court of Appeals, Unpublished), which stands, once again, for the proposition that if you want to talk to a lawyer prior to testing, you have to actively attempt to reach one.

In Pence, the Defendant was arrested for DWI and was subsequently informed, at the police station, of his right to consult with counsel prior to alcohol testing.  When Mr. Pence told the police that he DID wish to speak with a lawyer, he was provided with a phone and telephone books. 

Mr. Pence did not open the telephone books or pick up the telephone. The police informed him, several times, that he had only a limited amount of time to reach an attorney.  Mr. Pence eventually asked the police for assistance in contacting an attorney he described as "Mr. Sheridan".  

The police told Mr. Pence they would not assist him in finding a particular attorney's telephone number and that Pence needed to use the phone books himself to find the attorney's number.  Mr. Pence did not use either the telephone books or the telephone and after 21 minutes his right to contact counsel was terminated.

Mr. Pence subsequently refused to submit to testing and was charged with gross-misdemeanor test refusal.

On appeal, Mr. Pence argued that the police have a duty to assist in the vindication of the right to counsel and when they refused to attempt to help locate the number of a particular attorney, his pre-testing right to counsel was violated and the subsequent test refusal charge must be dismissed.

The Minnesota Court of Appeals disagreed with Mr. Pence noting:

“In deciding whether a driver's limited right to counsel was vindicated, a court should consider the totality of the circumstances surrounding the implied-consent advisory and the driver's opportunity to consult with an attorney. The caselaw has recognized a few factors that generally are relevant to the question whether a driver was given a reasonable opportunity to consult with counsel: whether the driver made a good-faith and sincere effort to reach an attorney, the time of day when the driver attempted to contact an attorney, and the length of time the driver had been under arrest when his consultation time was ended.” (citations omitted)

“In this case, the totality of the circumstances supports the district court's conclusion that Pence's limited right to counsel was vindicated. The most significant factor is whether Pence was making a good-faith and sincere effort to contact an attorney. He plainly was not making such an effort. He made no use whatsoever of the telephone books and the telephone that were provided to him. Pence emphasizes the fact that he was allowed only 21 minutes before his attorney consultation time was terminated. But in light of the absence of any effort on his part to contact an attorney, no apparent purpose would have been served by giving him more time.

"Pence also contends that his limited right to counsel was not vindicated because the police did not assist him in contacting "Mr. Sheridan." He relies on Friedman in arguing that "police officers must assist in the vindication of the right to counsel." The Friedman opinion imposes some obligations on a law-enforcement officer to assist a driver who wishes to consult with an attorney but not to the extent that Pence urges. The supreme court stated, "The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.  Friedman, 473 N.W.2d at 835 (quotation omitted).” Nothing in the caselaw since Friedman would require an officer to do more than provide a telephone and telephone books."

Moral of the story:  If you want to talk to an attorney prior to testing, don't just sit there like a bump on a log!

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.