The Right to an Attorney

Under Minnesota law, a person arrested for a DUI or DWI has the right to contact an attorney before deciding whether or not to submit to a chemical test of the person's breath. Law enforcement is required to provide an accused person with a reasonable amount of time to contact an attorney, but this time cannot unreasonably delay administration of the test. This means that police must allow you some time to contact an attorney, but are not required to wait for hours until morning when your attorney wakes up and answers the phone. If you cannot contact an attorney within a reasonable amount of time, a person may be required to decide whether or not to test on their own.

What is a Reasonable Amount of Time?

 The Minnesota state legislature has not expressly defined what is meant by a reasonable amount of time. Therefore, we must look to what the courts have said. In one case, the Minnesota Court of Appeals decided that in order to evaluate what is a reasonable amount of time, they balance the efforts of the accused in attempting to contact an attorney against the efforts of the officer to allow the accused an opportunity to contact an attorney. This means that there is not set amount of time that will be considered reasonable in every case. The unique circumstances of each case must be examined in order to determine whether the amount of time was reasonable. 

Recent Minnesota Court of Appeals Decision

In a recent unpublished decision, the Minnesota Court of Appeals had an opportunity to determine whether an officer afforded an allegedly impaired driver a reasonable amount of time to consult with an attorney before determining whether or not to submit to a chemical breath test. In that case, Wenzel v. Commissioner of Public Safety, the accused was given an opportunity to contact an attorney. Wenzel left a message for an attorney and spoke with his wife. After only six minutes, the officer then asked Wenzel if he would submit to a breath test and he refused. Wenzel's driving license was subsequently revoked for failure to submit to a chemical test, following an Implied Consent hearing. 

Wenzel appealed arguing that he was not given a reasonable amount of time to contact an attorney. The court of appeals agreed with Wenzel and reversed the decision of the Implied Consent court. The Court of Appeals reasoned that Wenzel never said that he was done trying to contact an attorney and the officers never asked if he was done trying to contact an attorney. Based upon the lack of indication that Wenzel was done contacting an attorney and the short period of time he was allowed, the Court of Appeals reversed the Implied Consent court.

What Does this Mean?

The Court of Appeals' ruling in the Wenzel means that the officers must do more than allow a person to make a couple of phone calls in a short period of time, when they ask to consult with an attorney. This decision was a good one for the rights of people throughout Minnesota. It allows people a meaningful opportunity to obtain legal advice prior to making decisions that could have severe consequences. If law enforcement asks you if you would like to speak to an attorney, take them up on their offer and contact the knowledgeable and experienced attorneys of Olson Defense 24 hours a day, 7 days a week, at (952) 835-1088 to protect your rights.