The Minnesota DWI Case Of The Week is State v. Ekelund (Decided June 8, 2020, Minnesota Court of Appeals, Unpublished), which stands for the proposition that if you give up trying to reach a lawyer, your right to counsel prior to testing will be deemed "vindicated".
In Ekelund, the Defendant was arrested for a DWI in Hubbard County and was taken to the Beltrami County jail for breath testing. The Defendant was read the Minnesota Implied Consent Advisory and he indicated he wished to consult with counsel prior to testing.
Mr. Ekelund was provided with a telephone and telephone directories at 2:24 a.m. The Defendant looked through the directories for several minutes and placed three telephone calls, but was unable to contact an attorney. Mr. Ekelund then asked for his personal cell phone, explaining to the officer that he wanted to speak with a non-attorney friend who could put him in contact with an attorney. The officer declined to give appellant his personal cell phone at that time. Appellant returned to the directories and placed five more unanswered telephone calls.
At 2:33 a.m., the officer gave Mr. Ekelund his cell phone. The Defendant used it to send a text message to a friend in an attempt to facilitate contact with an attorney. When he did not receive an immediate response, Defendant stated that it “might take a second” because “it’s kind of late at night.” The Defendant made two more calls on his cell phone, both of which went unanswered.
Eventually, Mr. Ekelund was able to complete a cell-phone call with a friend who indicated that he could provide appellant with the telephone number of an attorney. The Defendant ended that call at 2:44 a.m. and made no further calls using either his cell phone or the telephone provided by police. At 2:50 a.m., the officer asked whether Defendant had received the attorney’s phone number, and the Defendant stated, “[y]ep, I’m getting the number,” but specified that he was waiting for his friend to call him back.
At 2:57 a.m., the officer informed Mr. Ekelund that his time to contact an attorney would end at 3:00 a.m. The Defendant continued to sit passively—despite the ready availability of two different phones—and made no additional calls and sent no additional text messages. The officer declared Defendant's attorney time at an end just after 3:00 a.m. and asked him if he would take a breath test. Ekelund agreed to take the test. The test revealed a 0.22 alcohol concentration.
The Defendant moved to suppress the result of the breath test, and the district court denied the motion. The district court concluded that Mr. Ekelund's “limited right to counsel was vindicated because he had ceased to make good faith efforts to contact an attorney at the time law enforcement requested that he submit to a chemical test.”
On appeal, the Minnesota Court of Appeals affirmed the lower court, noting:
“[T]he Minnesota Constitution gives a motorist a limited right to consult an attorney before deciding whether to submit to chemical testing for blood alcohol.” State v. McMurray, 860 N.W.2d 686, 692 (Minn. 2015). This limited right “cannot unreasonably delay the administration of the test.” Minn. Stat. § 169A.51, subd. 2(4) (2016). The state vindicates this right when it provides the driver with a telephone before testing and gives the driver a “reasonable time to contact and talk with counsel. If counsel cannot be contacted with a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” Friedman v. Comm ’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation omitted)."
“A reasonable time is not a fixed amount of time, and it cannot be based on elapsed minutes alone.” Mell, 757 N.W.2d at 713. Rather, courts consider the totality of the circumstances in determining whether the state provided a reasonable amount of time to consult an attorney. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). Factors considered by a reviewing court include: the efforts made by the driver balanced against the efforts made by the officer; the time of day; and the length of delay since the driver’s arrest. Mell, 757 N.W.2d at 713. Police officers are required to “assist in the vindication of the right to counsel.” Mulvaney v. Comm ’r of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993). But an officer need not allow an arrestee “unfettered use of a telephone to call friends or relatives, unless the driver specifies that the reason for the calls is to contact an attorney.” McNaughton v. Comm ’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995)."
"A DWI arrestee must make a “good-faith and sincere effort” to contact an attorney with the time afforded him. Mell, 757 N.W.2d at 713. If the driver is not making a good- faith effort to contact an attorney, police need not afford additional time to contact an attorney. Id."
"The officer informed appellant that he had a right to contact an attorney and provided appellant with a telephone and telephone directories. Appellant looked through the directories and made several phone calls. When police provided appellant with his own personal cell phone, he made several additional calls and sent several text messages. Appellant was, for a time, making a good-faith effort to reach an attorney. However, the district court found as a fact that appellant later “ceased to make good faith efforts to contact an attorney.” The record supports this finding. Specifically, the recording of the implied-consent process shows appellant standing around, drinking water, and waiting for his friend to return his call. When the officer notified appellant at 2:57 a.m. that his attorney time would end at 3:00 a.m., appellant continued to sit passively and made no additional attempts to contact an attorney or anyone else."
"We conclude that the record adequately supports the district court’s finding that the officer vindicated appellant’s right to counsel by providing appellant with a telephone, appellant’s own personal cell phone, telephone directories, and a reasonable amount of time to make contact with an attorney. The record also amply supports the district court’s finding that appellant ended his good-faith effort to contact an attorney by the time the officer required appellant to decide whether to take the breath test. We therefore affirm the district court’s determination that appellant’s limited right to counsel was vindicated.
Moral Of The Story: Use it or lose it!
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.