Back in May, the Minnesota Supreme Court handed down its decision in State v. Hunn which dealt with citizens’ constitutional right to DWI pre-test counsel. At the heart of the case was whether there existed a constitutional right for DWI suspects to consult with a lawyer prior to submitting to a BAC test in criminal cases or whether this right only existed in civil implied consent cases.
Per the Sixth Amendment, every individual is provided the right to counsel in criminal prosecutions. In 1963, Gideon v. Wainwright extended this right to the states. Then, in 1991, the Minnesota Supreme Court decided, in Friedman, when the “critical stage” occurs prompting the right to counsel in DWI cases.
In prior cases, the Minnesota Supreme Court held that when a driver is asked to take a chemical test, this represents a “critical stage” in the process. As such, the right to counsel attaches.
Pursuant to Minnesota Statutes §171.177, a blood or urine test refusal in the face of a warrant is a crime subject to immediate driver’s license revocation. The warrant request should represent a “critical stage” in a DWI proceeding and should, therefore, mean that the subject is entitled to consult with an attorney prior to testing. Not allowing the person under arrest to consult with attorney before asking them to submit to the warrant is, clearly, unconstitutional.
Facts of the case
In Hunn, police officers arrested the defendant on suspicion of driving under the influence of a controlled substance. The officer failed to read Hunn the implied consent advisory that contains the limited right to counsel and then asked Hunn to take a urine test. Hunn agreed, and his sample showed the presence of methamphetamine.
At trial, Hunn sought to suppress the sample and the district court granted his pretrial motion. The appellate court reversed this decision on the grounds that the district court erroneously relied on Friedman v. Commissioner of Public Safety. The case then went to the state Supreme Court.
The Minnesota Supreme Court held that the right to consult with an attorney applies only if police chose to invoke the implied consent advisory.
Officers typically read DWI suspects the advisory prior to administering any DWI tests to explain that the law requires that the person take a test to determine whether s/he was under the influence; that refusal to submit to a test is a crime; that the person has the right to consult with an attorney before testing within a reasonable duration of time; and if there is an unreasonable delay or the person refuses to decide then the suspect will have been determined to have refused testing.
What this decision means is that the right to pre-test counsel is only applicable to the implied consent process and not the criminal process for DWI cases. Thus, if the arresting officer chooses to not invoke the implied consent advisory—or has a warrant—then the driver does not have any unique decision to make regarding submitting to the test and, therefore, has no right to consult with his/her attorney prior to testing.
It appears the Court focused on the fact that pre-test counsel was originally suited to help motorists determine whether to submit to or refuse BAC testing and not on the constitutional guarantee of a right to counsel afforded all criminal defendants.