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The constitutional right to have an attorney is firmly stamped in today’s modern legal system. Where the right to consult with an attorney begins and ends, however, is a more difficult area to address. This exact issue is being addressed on oral argument in front of the Minnesota Supreme Court on January 9, 2019. The case, State v. Rosenbush, re-examines when the right to consult an attorney is triggered during a DWI arrest.

Brief Facts 

In the summer of 2017, a deputy investigated a car in a ditch. At the scene, the deputy discovered a distressed and crying driver. The driver immediately stated she misjudged a turn, hit a sign, driven off the road, and then drove away. The driver also stated she attempted suicide a few days prior and was once again experiencing suicidal ideations. Based on his observations, the deputy placed the driver under arrest on suspicion of DWI and transported her to the hospital.

Meanwhile, the deputy’s supervising officer obtained a warrant for a blood sample for the driver. Once at the hospital, the deputy informed the driver of the warrant and that it was a crime to refuse the test. During this period, the driver did not receive an opportunity to consult with an attorney prior to her blood being drawn. After receiving charges for DWI, the driver’s attorney moved to suppress the evidence under the theory that “the test was in violation of her state constitutional right to consult with an attorney before deciding whether to submit to a test.” The district court granted the suppression motion.

Court of Appeals Decision 

The Court of Appeals determined two issues on appeal. First, would the suppression of the blood test evidence have a critical impact on the state’s ability to prosecute the case. Second, whether the warranted search of Rosebush’s blood was done at a critical stage in a criminal proceeding. The first issue of critically impacting the case came without much argument, as both parties agreed that suppressing the blood test evidence would have a critical impact on the state’s case.  Without proof of alcohol in the system, it would be very difficult for the State to prove Rosenbush was driving while under the influence. 

The second issue is where the real argument begins. The Court notes that the right to counsel does not attach until the commencement of a formal judicial proceeding.[1] The MN Supreme Court has recognized this rule can also apply for cases involving chemical testing of suspected drunk drivers. This recognition came after Friedman v. Comm’r of Pub. Safety in 1991. The case involved an officer arresting Friedman for DWI and the reading of her implied-consent advisory. 

In Friedman, the advisory stated that the person’s driver’s license would be revoked for one year if they did not submit to an evidentiary test and that refusal of the test would be used against them in court. The officer also advised could consult with an attorney after  testing. Friedman expressed confusion from these statements, saying that she did not fully understand the advisory and had already submitted to testing in the squad car. She also asked to speak with an attorney at this time, which the officer viewed as refusal to test and revoked her license.

Friedman argued that under Article 1, section 6 of the Minnesota Constitution, she had a right to consult with a lawyer before deciding whether to submit to a test. The MN Supreme Court agreed with this argument, holding that when a driver is asked to submit to chemical testing and given a choice with legal consequence, they are at a critical stage in the criminal process, thus attaching the right to consult an attorney. The Court in Friedman made an important distinction in this holding as well. They stated that due to the inability to understand the legal ramifications of her decision, Friedman went from a purely investigative testing procedure, to a critical stage in the criminal process. 

In 2017, shortly before Rosebush’s arrest, the MN legislature amended the DWI statutes to further cement this standard. The amendments require a breath test advisory that would inform the driver of their right to consult a lawyer prior to submitting to testing. It also included the requirement that prior to blood or urine testing being obtained through a search warrant, police must inform the driver suspected of DWI that refusal to submit to testing is a crime. With these new amendments in place, the MN Supreme Court heard the case – State v Hunn – while Rosenbush was still in the pendency stage of their appeal. 

In Hunn, the MN Supreme Court decided that the limited right to counsel recognized in Friedman, only applies to implied consent cases because the unique decision and consequences that come with the reading of the advisory. The court also declined to answer whether the Minnesota Constitution should be extended to provide a limited right to counsel, generally speaking. With this in mind, the State argued to the court of appeals that there is really no choice to be made by Rosenbush, as the police had obtained a valid warrant that essentially “commands” the arrestee to submit to testing. This makes the testing merely investigative, in the opinion of the State. Of course, Rosenbush contends that a choice is still present to submit to the testing, and whether or not you decide to take the test will result in different legal ramifications. 

The transcript from the Omnibus Hearing revealed that the deputy never presented Rosenbush with a choice, which the court appeals believed made the case more like Hunn than Friedman. Because of this, the court of appeals noted the warranted blood test to be investigative in nature, and not a critical stage of a criminal proceeding. At oral argument, counsel for Rosenbush will likely argue the importance to the right for counsel, and how this stage was extremely important in the criminal process, triggering the critical stage lever for the limited right to counsel. The future holding by the MN Supreme Court will have big implications on how the right to counsel will be viewed in our state moving forward. An essential constitutional right, that is one of the major driving forces against improper police tactics and behaviors.

Alec Rolain is a law clerk at Ambrose Law Firm, PLLC. He is in his final semester at Mitchell Hamline School of Law in St. Paul, Minnesota. Prior to law school, Alec attended St. Mary’s University in Winona where he played baseball and made the MIAC all-sportsmanship team. DUI Attorney Woodbury; DWI Lawyers Woodbury MN; and Criminal Lawyer Minnesota.


[1]State v. Nielsen, 530 N.W.2d 212, 215 (Minn. Ct. App. 1995).

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