The Minnesota DWI Case Of The Week is Jensen v. Commissioner of Public Safety, (Decided July 22, 2024, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that 2 hours after arrest is the outer limit for the pre-test right to counsel in a DWI case.
In Jensen, the Defendant was stopped at 10:50 p.m. and was subsequently arrested for a DWI. At approximately 12:15 a.m., the deputy read the Defendant the implied-consent advisory and informed him of his right to contact an attorney. Mr. Jensen elected to contact an attorney. The deputy gave the Defendant a telephone and two different attorney-telephone books, and helped Defendant make several calls. The Defendant also watched the deputy use a county computer to search for attorneys based on his precise requests.
After approximately 34 minutes of phone time, around the time when the two-hour alcohol-testing period would expire, the deputy told appellant that his time to contact an attorney was almost over. At approximately 12:50 a.m., the deputy helped appellant make another phone call before ending phone time. Appellant failed to contact an attorney and refused to take the chemical-breath test. Consequently, appellant’s license was revoked.
The license revocation was sustained by the district court and on appeal the Defendant argued his pre-test right to counsel was not vindicated. The Minnesota Court of Appeals disagree with the Defendant and upheld the license revocation stating:
"Appellant argues that he was not given (1) enough time to contact and receive a return call from counsel at 12:33 a.m., (2) personal internet access, (3) a cellphone, and (4) adequate assistance by law enforcement. To support his argument, appellant first seeks to distinguish this case from two cases that affirmed the determination that the drivers’ right to counsel was vindicated when the drivers received even less phone time than he did. See Parsons v. Comm ’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992); Umphlett v. Comm ’r of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995), rev. denied (Minn. Aug. 30, 1995). We are not persuaded, as both cases undermine, rather than support, appellant’s argument."
"Appellant was given a telephone, two different attorney-telephone books, and 34 minutes to contact an attorney. The deputy used a computer to search for specific attorneys at appellant’s request, and appellant knew his time was limited. Finally, the deputy waited until the two-hour-testing limit was about to expire before ending phone time after giving appellant several warnings. Although here, phone time began at approximately 12:30 a.m., the Parsons court determined that 40 minutes was reasonable at 1:33 a.m. when the driver was (1) provided a telephone and directories, (2) allowed to call anyone she wanted, (3) able to speak with a non-lawyer friend, and (4) aware that her phone time was limited. See Parsons, 488 N.W.2d at 501-02. The facts here are not fundamentally different from those in Parsons, despite appellant’s inability to contact anyone. And appellant points to no binding authority that requires officers to wait until a driver contacts an attorney before ending phone time."
"Second, appellant implies that the facts here are unlike those in Umphlett, in which this court determined that the driver’s right to counsel was vindicated when he was given a telephone and a phone book, understood his time was limited, and chose to make only two phone calls at 9:00 p.m. See Umphlett, 533 N.W.2d at 639. He argues that, unlike Umphlett, he never chose to stop calling attorneys and that his efforts were frustrated by the deputy’s undue concern for obtaining a chemical-breath test. We are not persuaded. The deputy was allowed to balance the need for an accurate sample with the time he had given appellant to contact an attorney, and determine that, because the two-hour testing window was about to expire, he had provided appellant with reasonable time and resources. See Minn. Stat. § 169A.51, subd. 2(3) (2022) (stating that driver’s right to consult counsel “is limited to the extent that it cannot unreasonably delay administration of the test”); see also Kuhn, 488 N.W.2d at 842 (recognizing that time under arrest bears on probative value of test)."
"Appellant also argues that, because the deputy did not read the implied-consent advisory until an hour and twenty-seven minutes after stopping him, he should have been afforded extra time to contact an attorney. We disagree. We have previously stated that there is no “absolute timeline during which the implied-consent statute may be invoked” because doing so would be “impractical.” State v. Padilla, No. A07-689, 2008 WL 1868064, at *2-3 (Minn. App. Apr. 29, 2008) (quotations omitted), rev. denied (Minn. June 18, 2008); see Minn. R. Civ. App. P. 136.01, subd. 1(c) (stating that nonprecedential authority may be cited for its persuasive value)."
"Under the totality of the circumstances, the district court did not err in determining that the deputy vindicated appellant’s limited right to counsel."
Moral Of The Story: Time is not on your side.
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.
No comments:
Post a Comment