When Do I have the Right to Talk to a Lawyer During a DWI Arrest in MN?
“Don’t talk to the cops without an attorney.” Usually, the best advice someone can follow if interacting with law enforcement. The Sixth Amendment guarantees your right to counsel. You also have the right to not incriminate yourself under the Fifth Amendment. But when, if at all, do these rights attach during a DWI arrest? If a cop is approaching your car during a traffic stop, can you invoke these Fifth and Sixth Amendment rights immediately?
Minnesota’s laws state your right to talk to an attorney during a DWI investigation does not begin until it reaches a critical stage. Most cops will not let you talk to a lawyer during a DUI arrest until you reach that critical stage. What is a critical stage? The Minnesota Supreme Court in Friedman decided a DWI investigation does not reach a critical stage until the officer asks the driver to take an evidentiary test. This should not happen until after officer reads the Breath Test Advisory (BTA), which happens after a DWI arrest. When a cop is going to ask someone to take an evidentiary breath test, the officer often reads the BTA either in the squad car or at the police station. This includes the important statement of: before deciding to take a breath test, do you wish to consult with an attorney?
If you do want to talk to an attorney before making that decision, then the police must give you a reasonable amount of time to consult with an attorney. What is a reasonable amount of time? The Minnesota Court of Appeals in Kuhn v. Comm’r of Pub. Safety determined a specific number of minutes alone is not proper to determine whether an amount of time is reasonable. To determine reasonableness, the court evaluated: (1) whether the driver made a good faith and sincere effort to reach a lawyer; (2) the time of day; and (3) the length of time the driver was under arrest. This is a nonexclusive list. Thus, courts should evaluate the totality of the circumstances in determining whether a reasonable amount of time passed.
Commonly, if you ask to speak with a DUI attorney during this time, then the officer may allow you to use your cell phone. You can then search the internet for a DUI attorney. Most answer the phone at all hours or call you back shortly thereafter. You can also call someone who is not a lawyer and ask them to contact a lawyer for you. In these situations, you must tell the cop you are calling someone to get an attorney for you according to State v. Karau. If you frustrate this attorney-time process, or unreasonably delay it, the cop may end your time to talk to a lawyer. If they do not let you use your own phone to contact a lawyer, law enforcement must provide you access to a phone and phone books to find lawyer. Minnesota’s DWI laws are ever changing. To get the most recent information, feel free to contact us by phone or text at: 612-547-3199 for a consultation at no charge.