Prior to submitting to a chemical test, a driver has the right to consult with an attorney prior to deciding whether he or she should submit to the government’s test. This test could either be a breath test, urine test or blood test. One of the most common themes in those cases where an individual’s right to counsel may have been violated is whether that person was give a reasonable period of time under the “totality of the circumstances” to contact a lawyer prior to testing.
The court’s in Minnesota will usually review several different factors when determining whether the police officer vindicated this right. For example, the court will review the time of night or morning the individual was trying to reach an attorney. Was it a time where attorneys are readily available for such a consultation? Also, was the driver diligent in his or her effort to actually find a lawyer? How many phone calls did he or she make? Lastly, how many minutes elapsed before the officer determined it was sufficient time and then requested a test. Generally, a “reasonable time” can never be based on a predetermined number of minutes.
In a relatively recent unpublished Minnesota Court of Appeals opinion, a defendant filed an appeal to challenge his convictions for second-degree DWI, test refusal and fleeing an officer, claiming that he was denied his right to counsel. The Minnesota Court of Appeals disagreed, affirming the lower court’s ruling.
The appellant claimed that the arresting officer failed to vindicate his right to counsel prior to his decision to submit to chemical testing. The Court of Appeals said that drivers have a limited right to counsel before deciding whether to submit to chemical testing. This includes being informed of their right to counsel and assistance vindicating that right. This assistance means that officers must provide a telephone and a reasonable time to make a call. The “reasonable” time is not a fixed amount and cannot be based on minutes alone, but instead on the totality of the circumstances.
As stated in the brief synopsis above, the Court assessed multiple factors including whether the officer did his job in assisting the driver in explaining his rights, whether the driver put forth a good faith effort to reach out to an attorney, the time of day when the attempt occurred and the length of time the defendant was under arrest. If a reasonable amount of time has passed, the police can then require a driver to decide whether to submit to chemical testing without counsel present.
In this case, the arresting officer provided the defendant with a telephone, several directories, a magnifying glass, two pairs of eyeglasses (after his own were lost fleeing from the police), his wallet and plenty of time. The appellant was only pressed to make a decision an hour and a half after having been arrested. The Court said that the officer had done his duty in assisting appellant and that it was appellant himself who failed to put forth a good faith effort to contact an attorney. The Court said he waited before calling anyone, then aimlessly flipped through a directory, wasting his own precious time. This was deemed a sufficient amount of time and appellant convictions were upheld.
To read the full opinion, click here.