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In DWI case, lawyer is not a right if police have warrant

By AMY FORLITIJuly 10, 2019

MINNEAPOLIS (AP) — A suspected impaired driver does not have a limited right to get legal advice before deciding whether to submit to a blood test if police have a search warrant, the Minnesota Supreme Court ruled Wednesday.

But the decision was met with dissent from three of the court’s seven justices, who said that even if police have a warrant, a driver could be confused about the legal ramifications of taking a blood test and should have the right to an attorney.

The decision comes in the case of a woman arrested on suspicion of drunken driving in 2017 in Dakota County. A deputy got a warrant for a blood sample, as required by law, and told her that refusal to comply would be a crime. The test showed the woman was over the legal limit for driving, but she tried to get those results tossed out because she wasn’t given the chance to talk with a lawyer.

In prior case law, the Supreme Court has held that accused people have the right to legal counsel at all critical stages of a prosecution, including pretrial procedures that could impair the defense. Prior case law says that a request for alcohol concentration testing under the implied-consent law is a critical stage, and that drivers have a limited right to consult with an attorney before submitting to a blood test.

But this case is different, the majority found, because police had a warrant — which is now required for blood or urine tests under updates to the implied-consent law. The implied-consent law also was updated to make test refusal a crime.

The majority found that a motorist has a choice of complying with a search warrant or being subjected to criminal penalties, and “we have never held that the Minnesota Constitution provides the subject of a search warrant with the right to consult counsel before a warrant can be executed.”

Justice Natalie Hudson, writing for the dissent, disagreed, saying that the majority opinion means police can deprive drivers of the limited right to counsel whenever they get a search warrant for chemical testing. She said the mere presence of a search warrant doesn’t alleviate concerns.

“Drivers will still be left without guidance about the legal ramifications of their decision and will still have to make a critical and binding decision that will affect them in a subsequent DWI prosecution,” Hudson wrote.

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