Monday, February 1, 2021

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Noel (Decided February 1, 2021, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you exercise too much right to counsel, they may hold it against you in a DWI Refusal trial.

In Noel, the Defendant was arrested for DWI in Minneapolis after driving the wrong way down a one-way street.  Mr. Noel was taken the the Minneapolis Chem test station and during the 15-minute observation period, the Defendant appeared to be trying to burp. Because forced burping may cause vomiting, which would delay the test, the police told Noel to stop.

The police officer next read Noel the breath-test advisory. Noel said he did not understand the part about speaking to an attorney, requiring the officer to re-read that portion of the advisory. Noel again indicated he did not understand. The officer then gave Noel a phone to contact an attorney. After speaking with an attorney for approximately 45 minutes, Noel told the officer that he would take the test.

The officer handed Noel the mouthpiece to begin the first of two required breath samples. He immediately noted that Noel “was not keeping [the] minimum flow rate” of air into the machine necessary to record a sample. The officer advised Noel “several times” that he needed to provide a “strong, steady breath.” But Noel failed to do so, and did not provide a sufficient sample by the end of the three-minute testing period. The officer determined Noel’s conduct amounted to test refusal.

At trial, the officer testified that Noel’s behavior during the testing process and several other factors led him to conclude that Noel refused the breath test. The other factors include the length of time Noel talked to an attorney,  his stated inability to understand the advisory “even after multiple readings,” and his attempts “to force himself to burp.” These factors also prompted the officer’s decision not to attempt a second test—even though he had the discretion to do so.

The Defendant was convicted of test refusal and on appeal, asserted that the District Court committed reversible error by admitting evidence that Noel consulted with counsel for 45 minutes.

The Minnesota Court of Appeals, however, affirmed his conviction noting:

"Because at trial Noel only objected to one instance of the officer’s testimony regarding Noel consulting with an attorney—while leaving prior testimony on the point unchallenged—we must consider both whether the district court abused its discretion by permitting the challenged testimony and whether the district court committed plain error by permitting the unchallenged testimony."

"Noel asserts his choice to avail himself of the right to counsel cannot be held against him at trial, citing State v. Roberts, 208 N. W.2d 744 (Minn. 1973). But the right described in Roberts is derived from the Fifth Amendment protection from self-incrimination. See 208 N.W.2d at 746 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 1625 n.37 (1966)); see generally Miranda, 384 U.S. at 465-66, 86 S. Ct. at 1623 (discussing U.S. Const, amend V). The limited right to counsel following a DWI arrest does not fall under the umbrella of protections afforded by the Fifth Amendment. See Friedman, 473 N.W.2d at 835, 837 (citing Minn. Const, art I, § 6). Accordingly, “[c]hemical testing in a DWI proceeding, pursuant to the implied consent law, is not self-incrimination and does not trigger Fifth Amendment protection against self-incrimination.” Busch v. Comm ’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn. App. 2000)."

"Second, conduct that unreasonably delays or otherwise frustrates the testing process—even conduct involving the limited right to counsel—may constitute test refusal. See Collins, 655 N.W.2d at 658 (driver’s belligerent speech and behavior, during which she invoked her limited right to counsel, frustrated the testing process and amounted to test refusal); Busch, 614 N.W.2d at 259-60 (driver’s silence during reading of breath-test advisory and conduct constituted retraction of his request for counsel and test refusal). Thus, evidence of the manner in which a person exercised his limited right to counsel may be relevant to whether he frustrated the testing process to such an extent that he refused the test."

"That is the situation here. Noel’s conduct before and during the administration of the breath test are relevant to whether his conduct frustrated the testing process. The fact that he spoke to an attorney for 45 minutes is one of several circumstances that tended to show he sought to unreasonably delay or otherwise obstruct the testing process. He initially attempted to burp up stomach contents, which could delay the process; he made the officer re-read portions of the breath-test advisory; and he did not follow repeated instructions to provide sufficient airflow, causing the test to restart several times over the course of three minutes, and resulting in a deficient sample."

"In sum, this record persuades us that the district court did not abuse its discretion or otherwise err by admitting the officer’s testimony that Noel spoke with an attorney for 45 minutes before the officer administered the breath test."

Moral Of The Story: When it comes to your rights, we don't have all day.

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.

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