In Minnesota, a person arrested on a police officer’s suspicion of DWI has the legal right to consult a lawyer prior to responding to a request by police to consent to chemical testing.
A problem often arises due to the fact that most of these situations happen in the late night or early morning hours when most people – and most lawyers – are asleep.
Most people who find themselves in this unwelcome circumstance never believed they would be, and may not know a criminal lawyer or DWI defense lawyer to call.
Sometimes they call any Minnesota lawyer they can think of, even though they might not be a criminal lawyer, or DWI defense attorney. This article is intended to help that lawyer.
If possible, refer the caller to a DWI defense attorney to call. If that does not work, they should call you back. Here are some basics for the Minnesota lawyer who does not regularly practice DWI defense.
Understand that the purpose of the phone consultation is to help the caller navigate the legal threats presented by the most lengthy and complex set of criminal laws – the DWI laws in Minnesota Statutes Chapter 169A.
Here is a list:
1. “Was there a collision or accident?”
If no, go to the next question. If yes, “do you know if anyone was injured?” and “where are you calling from?” If there was an alcohol-related injury motor vehicle accident, then the caller may be at risk of a felony Criminal Vehicular Operation (or Criminal Vehicular Homicide) charge. If that is the case, they may be better off refusing to consent to provide a sample for chemical testing.
There is currently in Minnesota, however, a statute defining such a refusal to consent to such a search – a crime, the crime of “Refusal to Submit to Chemical Testing.” Though this statute seems unconstitutional, in that it makes a crime out of a refusal to consent to a warrantless search, so far the Minnesota Appellate Courts have upheld it.
As a result, the lawyer should exercise caution, and avoid directly advising the caller in such a situation (likely felony CVO) to “refuse” to consent.
Rather, a Minnesota lawyer can safely advise the caller that “Since refusal is a crime, I can’t advise you to refuse. A lawyer is prohibited from advising a person to commit a crime. However a lawyer also has a duty of loyalty to the client, and to explain the legal consequences of your actions. If you submit a sample for chemical testing that may make it easier for the state to convict you of a felony crime. If you do not consent to giving a sample that may make it more difficult for them to do so, but could also be used to charge with a gross misdemeanor crime of ‘Refusal.’
The question “where are you now,” is intended to discover whether they are at a police station or a hospital.
2. If you provide a sample, tell the police that you want an additional test.
In Minnesota, a person who consents to a body search by submitting a sample for chemical testing after a DWI arrest, has the legal right to an “additional test.” This should always be done, whenever the breath test machine report is 0.08 or more, or when a blood or urine sample is collected.
Minnesota Statutes Section 169A.51, subd. 7 (b): The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.
Though this right is statutory, it is also a way to protect the state’s chemical testing scheme from constitutional challenges for violation of the accused’s right to exculpatory evidence and the state’s duty to preserve it, as in the Trombetta case.
How can a person get an Additional Test (as the statute calls it)? The time-honored method was to get someone to come down to the jail with a clean jar, and collect a urine sample, with the best attention to chain of custody issues, to be refrigerated and tested quickly.
Today, the better method in Minnesota is to call Additional Testing, Inc. – a local company that employs contract nurses to go out to jails, properly collect samples, preserve them, and submit them to a lab for chemical testing, with good chain of custody. If the evidence is exculpatory, they can testify in court as well.
The Additional Testing Right has been held to only require police to allow an in custody person the use of a phone (again) to arrange an Additional Test. I recommend calling Additional Testing, Inc.: 24-hour Dispatcher: Phone: (612) 333-3226 or Toll Free: (877) 333-3226.
3. “Is the police officer requesting a breath, blood, or urine sample?”
In Minnesota, the police officer may request any of these but if they request blood, the person cannot be deemed a “Refusal” unless the police officer then requests a urine sample which is then also refused. Similarly, if urine is requested, the person cannot be deemed a “Refusal” unless the police officer then requests a blood sample which is then also refused.
Minnesota Statutes Section 169A.51, subd. 3: Type of test. The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.
This is called the “Alternative Test Right.” It only applies to blood and urine requests.
4. “Were you involved in a motor vehicle accident? Was anyone injured?”
Most callers will (a) not have been in a motor vehicle accident, will (b) have no priors, and (c) won’t submit samples that will be claimed to be 0.16 or more alcohol concentration. These callers will be better off consenting to the search, after consulting a Minnesota lawyer. Callers not involved in a collision, with priors or 0.16 or more BAC will usually be better off consenting to providing a sample for testing. The exceptions to that general statement are unusual and beyond the scope of this Legal First Aid article.
5. Avoid answering questions about drinking, driving, etc.
After the samples for chemical testing are taken, or the claimed “refusal” is done, police officers normally will read a Miranda Warning and ask questions from an “Alcohol Influence Report” form; then write down and audio record the answers. Callers should be advised to remain silent, and decline to answer any questions. (The questions relate to drinking, feeling impaired, origin and destination, etc.)
The author, Thomas Gallagher is a Minneapolis DWI Defense Lawyer with three decades experience helping people facing DWI charges and license revocations, with a strong win rate.
He is a frequent lecturer on DWI defense law to lawyers, police and judges. Other lawyers seek his insights on their cases often. Now, you can call him for help or with a question if you like. Phone: 612 333-1500.