One of the common questions we are asked is how to successfully contest a DWI. It comes down to thoroughly reviewing all evidence with a focus on what the officer did or failed to do. One issue that has led to some recent successful cases is the “right to counsel”. These victories are getting clients their licenses back and charges dropped in Rochester, Minnesota and surrounding areas.

When an officer arrests a driver for suspicion of DWI and asks the driver to submit to a breath test, certain constitutional rights are triggered. One of those is the driver’s right to contact a lawyer to discuss their options before deciding whether to submit to a breath test. This includes giving adequate “attorney time” for the driver to contact and speak with an attorney.

We recently had a refusal DWI thrown out for this very issue. After giving our client 26 minutes to call a lawyer the “attorney time” was abruptly ended by the officer. The officer claimed he gave our client enough time to attempt to contact an attorney and was allowed to proceed with the test even though our client had not yet spoken to an attorney. We disagreed and filed a challenge to the license revocation and a motion to throw out the associated DWI criminal case. After a contested hearing and written arguments the court agreed with us, granted our motions, and gave our client her license back. The keys to the success were that the client made a good faith attempt to contact a lawyer, was arrested around midnight, and the officer had no reason to end the “attorney time” so quickly.

We have also had similar success in a case where the officer did not know how to operate the jail phone, which led the court to rule that being given an inoperable phone does not satisfy the right to counsel. We will also be at the Minnesota Court of Appeals on this same issue in a different case. We will be arguing that if the officer tells a driver what they should do and discourages the driver from calling a lawyer, the right to counsel has been violated.

Now, the right to counsel does not apply in all cases. Earlier this month the Minnesota Supreme Court ruled that the right to counsel does not apply to blood and urine tests that are conducted pursuant to a signed search warrant. In those situations the right to contact a lawyer does not apply, and the driver must act without the advice of an attorney.

This is just the tip of the iceberg and this issue will come down to the specific facts of each case. But, to use the right to counsel to defeat a DWI, a person must attempt to contact an attorney. Jay Adkins of Godwin Adkins has the knowledge necessary to successfully bring these challenges and a track record of doing so. He can be reached at 507-218-8383 Ext. 3.

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