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In “all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel.”[1]
Any traffic stop can be unnerving for most people. When pulled over on the side of the road, you may sense your pulse increasing. What is going to happen? If you believe the cop is going to investigate you for a DWI, you may become even more anxious. What do you do? Comply with the officers? Take the field sobriety tests?[2] Call a lawyer?
If an officer detains you, you can always request to contact an attorney regardless of the stage of interaction. But in Minnesota, your right to talk to an attorney during a DWI investigation does not attach until the interaction reaches a “critical stage”. Therefore, almost every officer will not let you talk to an attorney until you reach the “critical stage” as defined in Friedman.[3]
When do you reach the “critical stage”?
In Friedman, the Minnesota Supreme Court determined the process reaches a “critical stage” when an officer asks a driver to submit to an evidentiary chemical test.[4] This happens when an officer reads a driver the Implied Consent Advisory (ICA) after the arrest for DWI occurs. Shortly after a DWI arrest, the officer will read the ICA to the driver either in the squad car or after they transport you to the police station. One of the questions in the ICA is: you have the right to consult with an attorney before deciding to take a test, do you wish to consult with an attorney?
Consulting with an attorney
If you answer “yes” to the question “do you wish to consult with an attorney?”, then the law requires the officer to give you a reasonable amount of time to consult with a lawyer.[5] Taking the opportunity to consult with an attorney after your DWI arrest does not mean you are being uncooperative with the police. It is exercising your rights and most officers completely understand that. The officer is about to ask you whether you will you take a breath, blood, or urine test[6] and knowing how to answer that questions, and the possible implications, is important.
If you exercise your right to consult with an attorney during a DWI arrest, then most officers will allow you access to your phone. There, you can search online for a DWI lawyer. Most of which will answer their phone twenty-four hours a day. Most will also provide you with a free consultation. You also can contact a non-lawyer for the purposes of contacting a lawyer.[7] The officers can also provide you access to a phone in the police station and phone books to find an attorney. With all the recent developments in Minnesota DWI laws, especially with refusal cases, it is incredibly important to know your rights. A consultation with a lawyer who knows this area of law can help.
Robert H. Ambrose is a criminal defense and DWI lawyer in Minneapolis and St. Paul, Minnesota. Attorney Ambrose is a member of the National College of DUI / DWI Defense; has a Lead Counsel Rating in Drunk Driving Defense; and was named one of the “Ten Best” DWI Attorneys for Client Satisfaction in Minnesota. DWI lawyer St. Paul; St. Paul criminal defense lawyer; and DWI attorney St. Paul.
[1] Sixth Amendment. In 1963, Gideon v. Wainwright extended the right to counsel to the states under the Sixth Amendment.
[2] Our blog: Should You Do Field Sobriety Tests?
[3] The court reconciled its previous decisions in Prideaux and Nyflot and determined that when an officer asks a driver to take a chemical test it is a “critical stage” of a criminal proceeding and the right to counsel attaches. The court reasoned that Minnesota’s Constitution provides more protection than Nyflot, which applied federal constitutional law.
[4] In Friedman, Justice Yetka stated one of the most fundamental rights a citizen has is the right to counsel and noted that “whenever one is in trouble, [they should] contact [their] attorney and seek advice”.
[5] The court evaluated the definition of a reasonable amount of time to contanct an attorney in Kuhn v. Comm’r of Pub. Safety. The court noted that “basing the ‘reasonable’ time criteria on a specific number of elapsed minutes alone is improper. A court should consider a nonexclusive list of factors: (1) the driver “must make a good faith and sincere effort to reach an attorney”; (2) the time of day is a factor because “[a] driver should be given more time in the early morning hours when contacting an attorney may be more difficult”; and (3) “the length of time the driver has been under arrest is important because the longer he is under arrest the less probative value the chemical test may ultimately have.” Because this is a nonexclusive list, the court should evaluate the totality of the circumstances in each case to determine whether a reasonable amount of time was given to the driver to contact an attorney.
[6] The officer chooses whether to ask you for a breath, blood, or urine test. It is not your choice to make. You do have the right, however, to obtain an independent chemical test of your choosing, which we blogged about here.
[7] You must notify the officer that you are contacting a non-lawyer for the purposes of getting a lawyer. Any attempts to frustrate the process or unreasonably delay may cause the officer to end your attorney time. State v. Karau.
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