The Minnesota DWI Case Of The Week is Neiland v. Commissioner of Public Safety (Decided May 29, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person's right to contact counsel of their own choosing prior to testing is not violated when the police dial the telephone.
In Neiland, the Petitioner was arrested for a DWI and was read the Minnesota Implied Consent Advisory. The Petitioner was told he could contact an attorney or decide on his own whether to take the breath test. Petitioner picked up a phone book and began paging through it, but stated, "I don't know who I could call." The deputy told appellant that the phone books listed attorneys with 24-hour availability. Petitioner referenced being inexperienced and asked for the deputy's recommendation. The deputy explained that he did not recommend attorneys, but that Petitioner could choose to call any attorney and could later switch attorneys.
The Petitioner then pointed to an attorney's phone number in one of the phone books. The deputy dialed the number and handed the phone to the Petitioner.
The deputy left the holding room, and observed Petitioner through an open doorway while appellant spoke to a person on the phone. The deputy reentered the room and used a computer, but did not speak to Petitioner during the phone call. After approximately 13 to 14 minutes, appellant concluded the phone call by hanging up the receiver. The deputy asked Petitioner "Alright, you had a chance to speak with an attorney. Will you take a breath test?" Petitioner responded, "Yes." Petitioner then submitted to a breath test, which registered an alcohol concentration of 0.11, in excess of the legal limit.
Mr. Neiland petitioned the district court for rescission of the revocation, arguing, in part, that his right to counsel was not vindicated, which the district court denied following a contested implied-consent hearing. On appeal, the Minnesota Court of Appeals affirmed the district court, noting:
"Under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm 'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). Police officers must assist in the vindication of this right. Id."
"The right to counsel is considered vindicated when the driver is provided with a telephone prior to testing and given a reasonable amount of time to contact and consult with an attorney." Mell v. Comm'r of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008). "If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel." Friedman, A13 N.W.2d at 835 (quotation omitted). "The right to counsel is limited in DWI cases to ensure that consultation does not unreasonably delay the administration of the test."
"A driver has "the right to consult with a lawyer of his own choosing" before deciding whether he will submit to a chemical test. Friedman, 473 N.W.2d at 835 (quotation omitted). This right may be vindicated even if law enforcement does not allow the driver to personally dial a telephone number. Linde, 586 N.W.2d at 809-10."
"The evidence supports the district court's findings that appellant indicated his selection of an attorney and the deputy acted to assist appellant to contact rather than to select an attorney."
"Despite appellant's apparent indecisiveness over whether to contact an attorney, the evidence shows that the deputy reasonably interpreted appellant's actions as selecting an attorney and seeking the deputy's assistance to place a phone call. Had appellant wished to select a different attorney, or select no attorney at all, he had ample opportunities to tell the deputy of that decision, but he did not do so. On this record, we conclude that the deputy vindicated appellant's right to counsel to the extent that appellant was allowed to consult with an attorney of his own choosing."
Moral Of The Story: Exercise your right to counsel and demand to be allowed to dial the telephone!
If you or a loved one have been arrested for a Minnesota DWI or are facing the DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and forfeiture questions.