In the published case of State v. Hunn, 899 N.W.2d 541, Minn.App., June 19, 2017, review granted in part (Sep 19, 2017), the Court of Appeals held that there is no pre-test right to counsel when the police fail to read the Minnesota Implied Consent Advisory. But the case contains great language concerning Friedman and when pre-test counsel is required.
In Hunn, the Defendant was arrested for DWI and was taken to the Mower County police station. The arresting officer had reason to suspect that the Defendant had consumed drugs so the officer asked the Defendant if he would take a urine test and the Defendant agreed. The officer did not read respondent the implied-consent advisory or advise respondent that he had a limited right to speak to an attorney before testing.1 On April 8, the deputy received respondent’s test results, which indicated an alcohol concentration of 0.04 and the presence of methamphetamine and amphetamine.
The State charged the Defendant with second-degree DWI (any amount of schedule I/II drugs), no proof of insurance, and possession of drug paraphernalia. The Defendant moved to suppress the evidence and dismiss the complaint on a number of grounds, including the officer’s failure to read the implied-consent advisory and the invalidity of respondent’s consent to testing. The district court suppressed the urine-test results based on the deputy’s failure to read respondent the implied-consent advisory, including his failure to advise respondent of, and vindicate, his limited right to counsel prior to submitting to testing.
The State appealed the district court and the Minnesota Court of Appeals reversed the lower court’s decision, stating:
“In granting respondent’s suppression motion, the district court relied on language from the implied-consent law, which provides that an individual “must be informed . . . that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.” Minn. Stat. § 169A.51, subd. 2(a)(4) (2014). The district court also cited Friedman for the following propositions: (1) a driver has a right to consult an attorney before deciding whether to submit to chemical testing under the right-to-counsel clause in article 1, section 6 of the Minnesota Constitution and (2) a driver must be informed of this right and a police officer must assist in its vindication. Based on this reasoning, the district court suppressed the test results, due to the deputy’s failure to read the implied-consent advisory, and declined to otherwise determine whether respondent’s consent to the test was voluntary.”
“The state maintains that the district court’s conclusion was erroneous, arguing that the limited right to counsel under Friedman is inapplicable here because respondent was not read the implied-consent advisory and, therefore, did not face immediate revocation of his driver’s license. We agree and conclude that the district court erred in suppressing the test because respondent never faced a possibility of immediate sanctions under the implied-consent law when deciding whether to consent to the urine test.”
“Here, as in Nielsen, and unlike the facts presented in Friedman, the deputy did not read respondent the implied-consent advisory or seek chemical testing under the implied-consent law. This distinction from the facts of Friedman is significant. As a result, respondent’s decision regarding whether to consent to testing never carried a possibility of immediate license-revocation sanctions or criminal prosecution for test refusal. Instead, respondent only “faces the traditional [criminal] penalties for driving under the influence, and imposition of those penalties only after a jury trial at which he has the right to counsel.” Nielsen, 530 N.W.2d at 215. Accordingly, “[t]he process of chemical testing in this case was merely an investigatory stage which necessarily preceded the decision to prosecute.” Id. (citing Friedman, 473 N.W.2d at 833 (noting that ticket or tab charge, usually issued after test is performed, is equivalent to formal complaint)).”
“Because respondent was not read the implied-consent advisory, and, therefore, never faced immediate sanctions under the implied-consent law for test refusal, we conclude that there was no violation of the Minnesota Constitution’s right-to-counsel clause that required the district court to suppress the chemical-test results.”
Because what did the prosecutors do? They went to the legislature and enacted §171.177, which (effective July 1, 2017) restores the immediate license sanctions for a test refusal (as well as for test failure once the results are obtained from the lab). And since it is also a crime under §169A.20 to refuse to submit to a blood or urine search warrant request, all individuals subject to the search warrant sampling should now be entitled to consult with counsel prior to testing pursuant to State v. Hunn and Friedman v. Commissioner of Public Safety.
The police are just getting a search warrant and not allowing the person under arrest to talk to an attorney prior to asking them to submit to the warrant. The police procedure is clearly unconstitutional under the Minnesota State Constitution and anyone who has been subjected to a blood or urine search warrant after July l, 2017 should vigorously challenge the admissibility of the test result.
f you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.