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No Right To Consult With Counsel Prior to Deciding to Submit to Blood or Urine Testing in a DWI

The Minnesota Supreme Court ruled today in State v. Rosenbush that a driver does not have a right to consult with counsel prior to making a decision of whether to submit to blood or urine testing pursuant to a DWI investigation when law enforcement has obtained a search warrant. The court refused to extend the protections created in Friedman v. Commissioner of Public Safety to blood or urine tests

In Friedman v. Commissioner of Public Safety, a Minnesota Supreme Court case from 1991, the court ruled that a driver has a limited right to consult with counsel prior to making a decision whether to submit to chemical testing. This case required law enforcement to read what is known as an Implied Consent Advisory that informed a driver arrested on suspicion of DWI that they have a reasonable amount of time to try to contact legal counsel for advice prior to testing. This right to counsel applied to a test for blood, breath, or urine. The Friedman court stated that a right to counsel applies at all “critical stages” of criminal prosecution. An event is a “critical stage” if the accused requires aid or assistance in dealing with legal issues in the face of an adversary.

In Birchfield v. North Dakota, the United States Supreme Court ruled that states could criminalize the refusal to a breath test, but could not criminalize refusal of a blood or urine test absent a warrant. After this case, Minnesota created a separate statute to deal with blood or urine testing pursuant to a warrant. That statute only required law enforcement to inform the driver that refusal to submit to a search warrant for blood or urine was a crime. No right to counsel was included in this new statute.

In Rosenbush, the driver was presented with a search warrant for her blood, however, law enforcement never provided her with an opportunity to consult with counsel. Rosenbush argued that she had a right to counsel regardless of the type of test because of the decision in Friedman. The Minnesota Supreme Court disagreed. The court stated that a request to comply with a search warrant is not an adversarial proceeding. The court reasoned that a neutral magistrate will have already determined that there is sufficient evidence such that law enforcement can lawfully obtain a blood or urine sample. Therefore, the process is no longer adversarial.

Additionally, the accused driver can still challenge the lawfulness of the search warrant before trial. Also, the court noted that it has never held that the Minnesota Constitution provides the subject of a search warrant a right to consult with counsel prior to a search warrant being executed. If law enforcement shows up at a residence with a search warrant, the resident has no right to call an attorney to determine whether they should allow the search to take place.

In short, if law enforcement requests that you submit to a breath test, you have a right to consult with counsel prior to making a decision. If law enforcement requests that you submit to a blood or urine test and they have a search warrant, you have to make the decision on your own.