The Minnesota Court of Appeals ruled in Nelson v. Commissioner of Public Safety, that a person’s limited right to counsel was not violated by an Officer’s refusal to allow that person to speak with his attorney for a third time before deciding whether to provide a second blood sample. Furthermore, the Court held that an Officer’s request for a second blood draw was proper when the first blood draw came from an expired blood-test kit.
In Nelson, a driver (Nelson) was arrested for DWI and was subsequently transported to the Brooklyn Park jail, where he was read the implied-consent advisory and asked to submit to chemical testing. Nelson asked to speak with an attorney and a telephone was provided to him. Nelson spoke with his attorney for 25 minutes and he agreed to submit to a breath test. Nelson provided a breath sample which was determined to be insufficient. The Officer asked Nelson to submit to an alternative chemical test and read Nelson the implied-consent advisory a second time. Nelson asked and was allowed to speak to an attorney for a second time. At this time Nelson agreed to a blood sample and he was transported to hospital where a nurse drew a blood sample using a blood-test kit. Later the nurse informed the Officer that the sample was “no good” as the blood-test kit was expired. The Officer did not read the implied-consent advisory to Nelson for a third time, did not allow Nelson to consult with his attorney and informed Nelson that failure to submit to a second blood draw would be considered a refusal. Nelson provided a second blood sample 20 minutes later after the new blood-test kit arrived.
Nelson challenged the revocation of his license on the grounds that the implied-consent statute did not authorize the Officer to request a second blood sample and that his limited right to counsel was violated when he was denied an opportunity to speak with his attorney for a third time. The district court upheld the revocation of Nelson’s driver’s license from which Nelson appealed on both grounds.
The Court in Nelson ruled that Nelson’s right to counsel was vindicated because he was given two opportunities to consult with his attorney for a total of 33 minutes and the Court has previously held that a person’s constitutional right to counsel is not violated when their second request to contact an attorney has been denied. Thus Nelson’s limited right to counsel was not violated.
However, the second issue in Nelson, whether an officer can request a second blood sample when the first sample was drawn using an expired blood-test kit is more important. Nelson argued he fulfilled his obligations under the implied consent statute once he provided his first blood sample.
The Court rejected Nelson’s argument. First the Court found that the blood-test kit, not the officer, determines whether a sample is deficient. Thus, if the first blood sample in Nelson did not come from an expired kit rendering the test sufficient, Nelson would not have had to submit to a second blood sample. However, the blood-test kit from the first sample was objectively deficient therefore a second test was necessary. In other words if a test malfunctions, a driver may be required to submit to an alternative test. Second, in Nelson¸ it was undisputed that the first blood-test kit had expired and the Officer genuinely believed that the expired kit would affect the test result.
Lastly, Nelson argued based on previous case law, State v. Palmer, where the Court found a blood sample from an expired blood-test kit was admissible, thus it was not necessary to submit to a second blood draw. However the Court in Nelson rejected this argument by finding that the decision in Palmer was limited to the facts of that case and it would be absurd to hold that an expired blood-test kit is, as matter of law, admissible in a license revocation hearing. In Nelson, the reliability of the first blood sample was called into question therefore it was proper for the Officer to request a second blood sample.