The Right to Counsel

When someone is arrested for DWI, they are usually taken to a jail or police station, read the implied consent advisory, and asked to take a chemical breath test to determine whether they are under the influence of alcohol. Prior to deciding whether to take a test, a person has the right to seek the advice of legal counsel. If a person is not made aware of their right to consult with an attorney, or is not allowed a reasonable amount of time to consult with an attorney, there may be grounds to seek suppression of the test result. However, in cases where police are not seeking a breath test, the process works differently.

DWI & Search Warrants

In some cases, law enforcement wants to obtain a sample of a suspect's blood or urine. In such cases, the suspect is usually not asked if they will provide the sample. Instead, law enforcement will apply for and obtain a search warrant for the sample. After obtaining the search warrant, law enforcement will then present it to the suspect and obtain a sample of blood or urine. If the person presented with the search warrant declines to provide a sample, a sample will not be obtained. However, the person will likely be charged with the additional crime of test refusal. This raises the important question of how does someone know if they should comply with a search warrant for a sample of their blood or urine.

Search Warrants & The Right to Counsel

As discussed above, there is a limited right to counsel for someone who is asked to submit to a chemical breath test. However, it remains unclear whether someone presented with a search warrant has that same limited right to counsel prior to deciding whether to comply with the search warrant. In a recent unpublished opinion, the Minnesota Court of Appeals held that a person presented with a search warrant does not have the right to consult with an attorney prior to deciding whether to comply with the search warrant. The Court of Appeals reasoned that because the defendant did not know that a test would not be given if they refused to comply, they were not actually making a choice that would require the advice of counsel. The Court of Appeals explained that in situations where the implied consent advisory is read, a person is faced with a choice that allows for the advice of counsel and that in search warrant cases, the person is not faced with a choice and therefore does not need counsel. This issue of whether a person is has the right to counsel prior to determining whether to comply with a search warrant remains unsettled because on September 26, 2018, the Minnesota Supreme Court agreed to review the decision of the Court of Appeals.

Check back at https://www.mncrimdefense.com/blog for updates on these cases as they become available.