Knowing your legal rights is not always easy. If you come in contact with the police, your mind might start racing with questions, such as: “Do they need a warrant to search that? Why have I not been read my Miranda rights? When do I get my one phone call? Can I call an attorney right now?” If you are being investigated for a DWI in Minnesota, knowing when you can contact an attorney can be even more confusing.
The Sixth Amendment gives any individual the right to the assistance of counsel in criminal prosecutions. In 1963, the United States Supreme Court’s decision in Gideon v. Wainwright extended the right to counsel, in federal cases, under the Sixth Amendment to the states. The decision in Gideon triggered litigation for decades about when the right to counsel attaches in criminal proceedings. In 1991, the Minnesota Supreme Court made an important decision in Friedman v. Commissioner of Public Safety about when the right to counsel attaches in a DWI proceeding.
In Friedman, the Minnesota Supreme Court had to reconcile its previous decisions in Prideaux and Nyflot. In 1976, the Court in Prideaux held that when a person is asked to take a chemical test it is a “critical stage” in the process where the right to counsel attaches. In 1985, however, Nyflot held that deciding whether to submit to chemical testing was not a critical stage in the DWI process. Friedman resolved the two opinions by stating that Nyflot was decided under federal constitutional law, and Minnesota’s Constitution provides more protection.
In Minnesota, if you are stopped on suspicion of a DWI, you do not have a right to counsel until the proceeding reaches a “critical stage”. The Court in Friedman, decided that the critical stage is reached when you are asked to submit to a chemical test. Generally, you are asked to submit to a chemical test as part of the Implied Consent Advisory that an officer reads to you after being arrested for a DWI.
What if you want to talk to an attorney as soon as an officer stops you? Or, what if you want to talk to an attorney before doing any field sobriety tests? Or, before blowing into a PBT (Preliminary Breath Test)? You can always make a request to contact an attorney at those stages, but law enforcement often will not, and does not have to, grant your request because the process has not reached a “critical stage” yet.
In Friedman, Justice Yetka stated that the two most fundamental rights are (1) right to counsel; and (2) right to a trial by jury. Justice Yetka went on to state that “[e]very citizen has learned at an early age that whenever one is in trouble, the first resort should be to contact one’s attorney and seek advice”. The issue becomes that not everyone has, or knows, an attorney that they can contact. People are often embarrassed to call attorneys that they know, or simply do not know where to start looking for a lawyer. Often times, officers will allow people to search on their smartphones for a lawyer. This can be a quick an easy way to identify a DWI lawyer and most are available around the clock. Even if you have a good handle on your legal rights, it is still a good idea to contact a lawyer to discuss your options.
Robert H. Ambrose is an Attorney for the Kans Law Firm, LLC. If you are being investigated for a DWI, exercise your constitutionally protected right to counsel and contact our office.
