The Minnesota DWI Case Of The Week Is Henry v. Commissioner of Public Safety (Decided December 5, 2106, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you say you want to talk to a lawyer prior to testing, you damn well better try your best to reach one!
In Henry, the Appellant was arrested for DWI and was taken to the Benton County Jail where he was read the Minnesota Implied Consent Advisory informing him that he had the right to speak to an attorney prior to testing.
Henry told the deputy that he wished to contact an attorney. He requested access to his cellular telephone so that he could find the telephone number of a person he described as "my attorney." After some discussion, the deputy granted the request. The deputy then escorted Henry to a separate room with a desk, a telephone, and telephone directories. Henry used the jail telephone to call his attorney and left a voice-mail message.
After Henry left the voice-mail message for his attorney, the deputy told Henry that he could use the telephone directories to contact other attorneys. Henry did not attempt to do so. After further discussion with the deputy, Henry stood up as if he was ready to leave the room. Henry was in the room with the jail telephone and telephone directories for approximately four minutes.
The deputy escorted Henry back to the alcohol-testing room and asked him to submit to a breath test. Henry initially responded by asking multiple questions. He later said repeatedly that he would like to speak with an attorney. The deputy informed Henry repeatedly that he would need to make a decision to either submit to a breath test or not.
The deputy advised Henry that an unreasonable delay in making a decision would be deemed a refusal to submit to a breath test. The deputy asked Henry several times whether he would submit to a breath test, but Henry never answered the question. Eventually the deputy said that he would ask Henry one more time whether he would submit to a breath test. Henry again did not answer in the affirmative or the negative but, rather, indicated that he wanted to consult with an attorney. The deputy deemed Henry to have refused to submit to a breath test.
The Commissioner of Public Safety revoked Mr. Henry's license. Mr. Henry petitioned the district for review of the revocation arguing that his right to counsel had been violated. The District Court upheld the revocation and on appeal, the Minnesota Court of Appeals agreed noting:
"In deciding whether a driver's limited right to counsel was vindicated, a court generally should consider the totality of the circumstances surrounding the implied-consent advisory and the driver's opportunity to consult with an attorney. (Citations omitted). This court's caselaw has recognized a few factors that are relevant to a totality-of-the-circumstances analysis: 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)."
"If a driver's challenge is based solely on the amount of time allowed for contacting an attorney, the inquiry into whether the driver made a good-faith and sincere effort to reach an attorney is a threshold issue. (Citations omitted)."
"In this case, the district court determined the threshold issue as follows:
'Petitioner failed to make a good faith effort to contact an attorney, because he voluntarily stopped trying after he called the first attorney and left a voice message. . . . The jail video clearly shows Petitioner never making any attempts to contact other attorneys. Deputy Eisenschenk was given no indication that Petitioner wanted any more time, so he asked Petitioner if he was done contacting attorneys. Petitioner responded by restacking the directories and standing up to leave the room. Petitioner never asked Deputy Eisenschenk for more time. . . . Petitioner failed to meet the good faith threshold required to determine if he was given a reasonable amount of time to contact an attorney. Therefore, his right to consult with an attorney was vindicated.'
"Henry contends that, even if he chose to not call more than one attorney when he was given the opportunity, he changed his mind shortly thereafter and should have been permitted to contact other attorneys at that time. Henry cites State v. Slette, 585 N.W.2d 407 (Minn. App. 1989), in which this court stated that "officers should recognize the withdrawal of a DWI arrestee's initial waiver of the right to consult with counsel when the change of mind is immediate and does not interfere with police officers' processing of a case or their ability to administer [a breath] test." Id. at 409. Henry cannot rely on Slette because the case is distinguishable, for at least three reasons:
First, the defendant in Slette waived his right to consult with an attorney without making any telephone calls. Id. at 408. But Henry exercised his right to contact an attorney and chose to call only one attorney.
Second, Henry's renewed requests to consult with an attorney did not occur immediately after he voluntarily terminated his opportunity to use the jail telephone and telephone directories. Rather, he did not request another opportunity to consult with an attorney until he was brought to the testing room and was read the implied-consent advisory three additional times.
Third, Henry did not expressly state that he wanted to contact an attorney other than the attorney for whom he already had left a message. Thus, it appears that he wanted Deputy Eisenschenk to allow him to wait until his attorney returned his call. But the caselaw is clear that a driver who has been arrested for DWI "cannot be permitted to wait indefinitely for a call that may never come." Palme, 541 N.W.2d at 345. For that reason, Henry's last-minute request to consult with an attorney, if granted, would have interfered with Deputy Eisenschenk's "processing" of Henry's case and the deputy's "ability to administer [a breath] test." See Slette, 585 N.W.2d at 409. Accordingly, Henry was not entitled to change his mind about continuing to try to consult with an attorney.
Thus, the district court did not err by concluding that Henry's limited right to counsel was vindicated."
Moral Of The Story: If you want to talk to a lawyer, you had better "exercise" your right to do so. Otherwise the police can cut you off.
If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.
In Henry, the Appellant was arrested for DWI and was taken to the Benton County Jail where he was read the Minnesota Implied Consent Advisory informing him that he had the right to speak to an attorney prior to testing.
Henry told the deputy that he wished to contact an attorney. He requested access to his cellular telephone so that he could find the telephone number of a person he described as "my attorney." After some discussion, the deputy granted the request. The deputy then escorted Henry to a separate room with a desk, a telephone, and telephone directories. Henry used the jail telephone to call his attorney and left a voice-mail message.
After Henry left the voice-mail message for his attorney, the deputy told Henry that he could use the telephone directories to contact other attorneys. Henry did not attempt to do so. After further discussion with the deputy, Henry stood up as if he was ready to leave the room. Henry was in the room with the jail telephone and telephone directories for approximately four minutes.
The deputy escorted Henry back to the alcohol-testing room and asked him to submit to a breath test. Henry initially responded by asking multiple questions. He later said repeatedly that he would like to speak with an attorney. The deputy informed Henry repeatedly that he would need to make a decision to either submit to a breath test or not.
The deputy advised Henry that an unreasonable delay in making a decision would be deemed a refusal to submit to a breath test. The deputy asked Henry several times whether he would submit to a breath test, but Henry never answered the question. Eventually the deputy said that he would ask Henry one more time whether he would submit to a breath test. Henry again did not answer in the affirmative or the negative but, rather, indicated that he wanted to consult with an attorney. The deputy deemed Henry to have refused to submit to a breath test.
The Commissioner of Public Safety revoked Mr. Henry's license. Mr. Henry petitioned the district for review of the revocation arguing that his right to counsel had been violated. The District Court upheld the revocation and on appeal, the Minnesota Court of Appeals agreed noting:
"In deciding whether a driver's limited right to counsel was vindicated, a court generally should consider the totality of the circumstances surrounding the implied-consent advisory and the driver's opportunity to consult with an attorney. (Citations omitted). This court's caselaw has recognized a few factors that are relevant to a totality-of-the-circumstances analysis: 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)."
"If a driver's challenge is based solely on the amount of time allowed for contacting an attorney, the inquiry into whether the driver made a good-faith and sincere effort to reach an attorney is a threshold issue. (Citations omitted)."
"In this case, the district court determined the threshold issue as follows:
'Petitioner failed to make a good faith effort to contact an attorney, because he voluntarily stopped trying after he called the first attorney and left a voice message. . . . The jail video clearly shows Petitioner never making any attempts to contact other attorneys. Deputy Eisenschenk was given no indication that Petitioner wanted any more time, so he asked Petitioner if he was done contacting attorneys. Petitioner responded by restacking the directories and standing up to leave the room. Petitioner never asked Deputy Eisenschenk for more time. . . . Petitioner failed to meet the good faith threshold required to determine if he was given a reasonable amount of time to contact an attorney. Therefore, his right to consult with an attorney was vindicated.'
"Henry contends that, even if he chose to not call more than one attorney when he was given the opportunity, he changed his mind shortly thereafter and should have been permitted to contact other attorneys at that time. Henry cites State v. Slette, 585 N.W.2d 407 (Minn. App. 1989), in which this court stated that "officers should recognize the withdrawal of a DWI arrestee's initial waiver of the right to consult with counsel when the change of mind is immediate and does not interfere with police officers' processing of a case or their ability to administer [a breath] test." Id. at 409. Henry cannot rely on Slette because the case is distinguishable, for at least three reasons:
First, the defendant in Slette waived his right to consult with an attorney without making any telephone calls. Id. at 408. But Henry exercised his right to contact an attorney and chose to call only one attorney.
Second, Henry's renewed requests to consult with an attorney did not occur immediately after he voluntarily terminated his opportunity to use the jail telephone and telephone directories. Rather, he did not request another opportunity to consult with an attorney until he was brought to the testing room and was read the implied-consent advisory three additional times.
Third, Henry did not expressly state that he wanted to contact an attorney other than the attorney for whom he already had left a message. Thus, it appears that he wanted Deputy Eisenschenk to allow him to wait until his attorney returned his call. But the caselaw is clear that a driver who has been arrested for DWI "cannot be permitted to wait indefinitely for a call that may never come." Palme, 541 N.W.2d at 345. For that reason, Henry's last-minute request to consult with an attorney, if granted, would have interfered with Deputy Eisenschenk's "processing" of Henry's case and the deputy's "ability to administer [a breath] test." See Slette, 585 N.W.2d at 409. Accordingly, Henry was not entitled to change his mind about continuing to try to consult with an attorney.
Thus, the district court did not err by concluding that Henry's limited right to counsel was vindicated."
Moral Of The Story: If you want to talk to a lawyer, you had better "exercise" your right to do so. Otherwise the police can cut you off.
If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.
No comments:
Post a Comment