A person has the right to consult with a lawyer if they’ve been charged with a crime, but when exactly can a person legally reach out to a lawyer during the criminal process? Do you have to wait until you’re in handcuffs, once you’ve been officially charged, or can you get advice before that stage? For example, if you’ve been asked to take a breathalyzer test, can you call an attorney and ask if you should blow or refuse? That’s the question we tackle in today’s blog.
When Can I Call A Lawyer in Minnesota?
As granted in the Sixth Amendment of the US Constitution, a person has the right to legal counsel in criminal prosecutions. In 1963, that constitutional protection was extended to the state level (previously some states said counsel was only allowed if the person had been charged with a capital offense, for example), and in 1991, the Minnesota Supreme Court ruled that a citizen has the right to counsel when a “critical stage” occurs.
Now, there is obviously some interpretation when it comes to defining a “critical stage” in the legal process, but thankfully a recent case added some clarity as to when a critical stage is reached in a DUI case. For that, we turn to the case of State v. Hunn.
In that case, Hunn was arrested on suspicion of DUI, and during the traffic stop, the officer failed to read Hunn the implied consent advisory. This part is key, because the implied consent reading contains a some basic information about the state’s implied consent law, including that refusal is a crime and that a person has the right to consult with legal counsel as long as it doesn’t unreasonably delay the test. Since this reading explicitly grants the individual the right to talk with a lawyer about whether they should or shouldn’t take the test, this is considered a critical stage where someone could legally contact a lawyer.
But here’s the twist. Because the officer did not read that blurb, which they can legally leave out as long as they don’t intend to charge you with an implied consent violation, then you’ve not yet reached a critical stage. This was affirmed in the Minnesota Supreme Court when Hunn challenged the legality of a urine test he gave the officers. Since Hunn was not read the implied consent law, and he willingly submitted a urine sample that was not taken as the result of a warrant, he had not yet reached a critical stage where consulting with legal counsel was allowed.
Simply put, the Minnesota Supreme Court ruled that a person has the right to consult with an attorney only if police have chosen to invoke the implied consent advisory. The court is basically saying that the right to pre-test counseling only applies if police are attempting to charge you with a crime for refusing to submit. If they don’t plan on pursuing implied consent charges, then you can’t yet consult with a lawyer. If the implied consent advisory has been given, a critical stage has been reached, but if police do not provide that advisory and continue to pursue the case as part of the criminal process of a DWI case, you’ve not yet reached a critical stage where you can contact a lawyer.
Also, it’s worth noting that if the officer has a warrant, it means the individual does not have a unique choice regarding the submission of the test, and therefore does not have a legal right to counsel at that point either.
So while you may ask the officer if you can contact a lawyer during your DUI stop, they don’t have to legally allow you to unless they read you the implied consent advisory. If you need a lawyer at any point in your DUI case, give the Avery Appelman and his team a call at (952) 224-2277.
