MN DWI and Rights to an Attorney
Minnesota gives drivers a right to speak with an attorney before a DWI breath test
In every criminal case, you have the right to an attorney during the court process, but in DWIs there is an additional point where the officer must allow you to speak with an attorney.
Right to attorney before taking the breath test
The Minnesota Constitution gives drivers a right to speak with an attorney before deciding to take a breath test. If the officer does not allow the driver to speak with an attorney, or makes it difficult for them to do so, the breath test result could be thrown out of court. This means that some or all the charges could be dismissed, and you could get your driver’s license back.
How does the right to attorney work during the breath test process?
First, the officer will read you the implied consent advisory, which will explain in part, that Minnesota Law requires you to take a breath test, that refusal is a crime, but that you have the right to speak with an attorney before deciding whether you will take the breath test. The officer then must provide you with a telephone and phone numbers of attorneys. They should also allow you to contact an attorney of your choice if it will not unreasonably delay the breath test.
What are the limits of the right?
Your right to an attorney in this context, by definition, is limited. This means you will be given a reasonable period to contact an attorney and you must make “good faith” efforts to get ahold of an attorney. If the officer believes you have taken too long, or that you are not trying to contact an attorney, they can end your attorney time and tell you that you must decide whether to take the breath test on your own.
What is a “reasonable” period of time, and what are “good faith” efforts?
There is not set period that is reasonable under Minnesota law. Usually, courts look at the time of day you’re trying to call an attorney, the time between arrest and your attorney time, and whether you’re really trying to get ahold of an attorney. Courts generally believe that drivers are acting in good faith if they make multiple phone calls and leave voicemails. If drivers waste time or delay, usually they are not acting in good faith. If you made your calls late at night or early in the morning, courts usually maintain that officers must allow you a reasonable period to receive a call back.
Why should I contact an attorney before taking the breath test?
It is important to contact an attorney because by taking the breath test you are providing evidence to law enforcement that will be used to prosecute you, and if your breath test result is over .08, your license will be revoked in Minnesota. However, this does not mean that you should refuse the test. Many times, it is better to take the breath test, then to not take the breath test. An attorney cannot tell you to refuse the breath test, however, they can tell you what the consequences of taking the breath test versus refusing the breath test are, so you can make an informed decision about whether to take the breath test.
The attorneys at Sieben & Cotter have been successful in getting charges dismissed and driver’s licenses returned after an officer has violated the right to counsel. If you have been charged with DWI, act quickly. Call Sieben & Cotter at 651-455-1555 to arrange your free and comprehensive consultation, or send a request for more information.