The Implied Consent Advisory and the Right to an Attorney Following a DUI or DWI Arrest

Posted by Eric Olson | Feb 18, 2021 | 0 Comments

The Typical DUI or DWI Arrest

Every day, hundreds of people are arrested for DUI or DWI in Minnesota. These arrests commonly follow a similar pattern. They usually begin with an officer conducting a traffic stop due to a traffic violation like speeding, or an equipment violation, like headlights or tail lights not being illuminated. Upon making contact with the driver, the officer can often smell alcohol and observes that the driver has bloodshot, watery eyes. At this point, the officer will usually have the driver exit the vehicle to perform field sobriety tests. If the driver does not perform satisfactorily, the officer will ask them to submit to a preliminary breath test. If this preliminary test indicates a blood alcohol content over .08, the driver is placed under arrest. 

Following the arrest, the driver will be taken to a police station and read the Minnesota Implied Consent Advisory. This advisory informs the driver that they are suspected to have violated Minnesota's DWI laws and that they have been placed under arrest as a result. It also informs them that Minnesota law requires them to take a test to determine if they are under the influence of alcohol and that refusal to take a test is a crime. The advisory also informs the driver that they can contact an attorney prior to making a decision about testing. Following the advisory, the person is asked if they will take a test.

What if the Implied Consent Advisory is not read?

Sometimes, an officer will not read the Implied Consent Advisory. This happens most commonly when an officer decides to pursue a search warrant for a driver's blood or urine sample. If the police obtain a warrant, you do not have the right to contact an attorney prior to submitting a blood or urine sample. However, a recent decision from the Minnesota Supreme Court highlights another situation in which an officer does not need to read the Implied Consent Advisory.

In State v. Hunn, the defendant was stopped for a traffic violation and failed field sobriety tests. However, his preliminary breath test indicated a blood alcohol concentration under .08. As a result, the officer suspected that the driver may have been under the influence of a controlled substance. The driver was placed under arrest and brought to a police station. Once at the police station, the officer did not read the Implied Consent Advisory and did not request the driver to submit to a breath test. The officer also did not seek a warrant to obtain a sample of the driver's blood or urine. Instead, the officer simply asked the driver if he was willing to give a urine sample. The driver consented and the driver's urine revealed the presence of controlled substances.

The driver was charged and moved to dismiss the charges arguing that he was not informed of his rights or the consequences for taking or refusing the urine test. The District Court suppressed the results of the urine test because the officer did not read the implied consent advisory and did not allow the driver to consult with an attorney before deciding whether to submit to the test. The State appealed this decision and the Court of Appeals reversed their decision, reasoning that because the implied consent advisory was not read, the officer was not seeking a test under the implied consent law and the driver had no right to consult with an attorney. The driver petitioned the Minnesota Supreme Court for review of the Court of Appeals' decision and affirmed it. 

What does this mean for drivers?

The most important thing for drivers to know following Hunn is that if you have been arrested for DWI and the officer has asked you to submit to a blood or urine test without reading the implied consent advisory, you do not have the right to consult with an attorney prior to making your decision. In this situation, a driver could simply refuse to submit to the test. The officer would then have the option of obtaining a warrant or reading the implied consent advisory and requesting a breath test. 

If you are faced with a DWI arrest, or any other type of law enforcement interaction, the most important thing you can do is have a knowledgeable and experienced attorney on your side to protect your rights. If you or a loved one has been arrested for DWI, contact the attorney's of Olson Defense for a free consultation.

About the Author

Eric Olson

Eric J. Olson has dedicated his career exclusively to criminal law, with a focus onDWI defense. For the past 16 years, Mr. Olson has developed a reputation in the legal community as an aggressive, compassionate advocate for his clients.


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