The Minnesota Supreme Court today issued an opinion which details when a driver who has been arrested for a DWI has the right to consult with an attorney before deciding whether or not to take a breath test. Under Minnesota law, any person who drives, operates, or is in physical control of a motor vehicle while in the state consents to a chemical test of that person’s blood, breath, or urine to determine if they are under the influence. This is often referred to as the “Implied Consent Law.” If a police officer requests that a person take a breath test under the Implied Consent Law, that person must be informed that Minnesota law requires them to take a test to determine if they are under the influence of alcohol, that refusal to do so is a crime, and crucially, that they have the right to consult with an attorney. This is commonly known as the Implied Consent Advisory. In 1991, in Friedman v. Commissioner of Public Safety, the Minnesota Supreme Court held that when a police officer asks for a test under the Implied Consent Law, it was a “critical stage” in the proceeding and the driver has the right to consult with an attorney prior to deciding whether or not to submit to the test.

However, today the Minnesota Supreme Court held that the right to counsel in a DWI arrest is only triggered when an officer reads the driver the implied consent advisory. In its decision today, the Court stated that when an officer reads the Implied Consent Advisory to a driver suspected of DWI, the driver is faced with the decision of whether to submit to the test or to refuse the test. Because this choice may not only “provide law enforcement evidence necessary to secure a conviction” but may also result in an automatic, mandatory revocation of a driver’s license, an attorney is necessary to explain the choices and potential ramifications of those choices.

In cases where the officer does not read the Implied Consent Advisory, no such choice is present and as such, the right to counsel does not apply in these cases.

In today’s case, the driver was arrested on suspicion of being under the influence of a controlled substance. The driver was arrested and at the police station, the officer asked the driver if they would submit to a urine test. The driver agreed and was prosecuted for driving with a controlled substance in their system. The driver challenged the case on the basis that they were not given an opportunity to consult with an attorney before giving the urine sample. The District Court agreed with the driver and threw out the urine sample as evidence. The state appealed and the Minnesota Court of Appeals reversed the District Court, concluding that because the officer did not read the Implied Consent Advisory, the driver did not have the right to consult with an attorney. Today the Minnesota Supreme Court upheld that ruling.