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Rights? The
voice slurs as you pick up your bedside phone: “Hey, It’s Bob.” Before you can say anything, Bob tells you that
he’s down at the jail, they want him to take a breath test, and they
let him call a lawyer first. Then
he volunteers that the last three times he got arrested in other states,
they never let him call a lawyer.
As you advise him not to make any more admissions like that in front
of the Intoxilyzer operator, the wheels
in your head start turning.
You remember something about a case that dealt with suppression
of prior revocations from other states where the accused was not allowed
to consult with counsel prior to chemical testing.
You later find out that he had a revocation in Texas, a conviction
in Oklahoma, and a conviction in Iowa. Many states do not accord
suspects the right to counsel prior to submitting to chemical testing
for DWI. This creates difficult
issues when those revocations are later used to enhance DWI charges
in Minnesota. The way that Minnesota treats foreign DWI arrests
in which the subject did not have benefit of counsel has evolved in
recent years. An understanding
of the right to counsel in general is thus prerequisite to understanding
what right to counsel obtains for one deciding whether to submit to
chemical testing. Weaving Down the
Road State courts have the
power to interpret their own constitutions to expand the rights of
individuals.3 Minnesota’s
route to recognition of the right to counsel before submitting to
chemical testing has been a winding road. Initially, a driver
in Minnesota had no constitutional right to consult with counsel before
deciding whether to submit to chemical testing.
The Minnesota Supreme Court in State
v. Palmer, 191 N.W.2d 188 (Minn. 1971), adopted the nearly unanimous
view that chemical testing is not a critical stage for purposes of
the 6th Amendment guarantee of the right to counsel.4 Further, the state constitution provided
no right to counsel, because the right given there did not apply to
“civil” matters such as the revocation of a driver’s license.5 Eight years later, in
Prideaux v. State, 247 N.W.2d 385 (Minn. 1976),
the Supreme Court questioned the Palmer
reasoning, but stopped short of overruling its constitutional analysis. Instead, the Court left that door open and turned
to the statutory right to counsel found in Minn. Stat. §481.10, which
provides a right to consult with an attorney to people held in custody.6
The Court concluded that a person arrested in Minnesota for DWI has
a limited right to counsel before submitting to chemical testing,
“provided that such a consultation does not unreasonably delay the
administration of the test.”7 The Court also stated:
Later, the Legislature
deleted that provision from the implied consent advisory, paving the
way for the temporary elimination of the right by Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn. 1985):
“Because the legislature originally signified its adherence
to the Prideaux ruling by amending the
advisory to include a limited right to counsel prior to testing, it
makes sense that the legislature intended to abandon the Prideaux right to counsel by later
amending the advisory to remove this right.”10 The Nyflot court also closed the door to the 6th Amendment right left open by
Prideaux.11 The rule following Nyflot was that neither the United
States Constitution nor Minnesota statutes afforded the right to counsel
prior to submitting to chemical tests for intoxication. This rule lasted six years, almost to the day. In Friedman v. Commissioner of Public Safety,
472 N.W. 2d 828 (Minn. 1991), the Minnesota Supreme Court revisited
whether the state constitution provides a limited right to counsel
prior to chemical testing. Article
I, section 6 of the Minnesota Constitution provides that in any criminal
proceeding the accused shall enjoy the right to have assistance of
counsel in his defense. Overruling the position
taken in Palmer, the Friedman court concluded that a DWI license
revocation is sufficiently criminal in nature to trigger the Minnesota
Constitution’s right to counsel.12 Friedman
brought Minnesota into the minority of states13 that recognize an
individual has a right protected by the state constitution to a reasonable
opportunity to obtain legal advice before deciding whether to submit
to chemical testing.14
In 2004 the Court of
Appeals held in State v. Bergh,
679 N.W.2d 734 (Minn. App. 2004), that a Colorado alcohol-related
drivers license revocation could not be used to enhance a Minnesota
DWI where the defendant was not allowed to consult with counsel before
submitting to chemical testing during the prior arrest.
Bergh was charged with two counts of first degree DWI.
He had two prior Minnesota convictions and one Colorado revocation
and conviction.17 Bergh
challenged the Colorado revocation and ultimate conviction based upon
the denial of his right to consult with counsel prior to submitting
to chemical tests for intoxication. The trial court determined
that the Colorado criminal conviction could not be used to enhance
the Minnesota offenses but that the license revocation could be so
used.18 Bergh appealed.
Since the state did not cross-appeal, the Court of Appeals
had only the prior revocation before it. The Bergh court relied on State v. Friedrich, 436 N.W.2d 475 (Minn.
1989), for the proposition that where prior convictions do not comport
with the Minnesota Constitution, they cannot be used to enhance Minnesota
charges.19 Bergh extended Friedrich
so that revocations resulting from chemical tests taken without benefit
of counsel could not be used to enhance a Minnesota DWI.20 Although the Court of Appeals answered the question
as to prior revocations, it did not address whether prior convictions
could result in enhancement where the right to counsel prior to testing
was not recognized. That issue
would remain open until 2006. Now Turn Around On March 1, 2004, a
Blue Earth police officer arrested Leroy Schmidt for DWI. Within the
ten years prior to his arrest, Schmidt had a prior Minnesota conviction
for DWI and three South Dakota convictions based upon laws in conformity
with Minnesota’s DWI law.21 The
parties did not dispute that Schmidt decided whether to submit to
the South Dakota chemical tests without the opportunity to consult
with counsel. Schmidt was charged
with first degree felony DWI in violation of Minn. Stat. §169A.20,
Subd. 1 (1); 169A.24,
subd. 1 (1) (2004),
and felony test refusal in violation of Minn. Stat. §§169A.20, subd. 2 and 169A.24, subd. 1 (1) (2004). Schmidt challenged the
felony counts, arguing that the South Dakota convictions could not
be used to enhance his Minnesota offenses, because he was not allowed
to consult with counsel prior to deciding whether to submit to chemical
testing.22 Schmidt attempted to collaterally attack
the South Dakota convictions based upon the argument that they violated
his right to counsel guaranteed by the Minnesota Constitution. Although the Minnesota
Supreme Court had allowed collateral attack of underlying convictions
for uncounseled plea agreements,23
the Court declined to extend this method of collateral attack to prior
convictions following uncounseled chemical
tests. The Court noted the
decision whether to plead guilty was entitled to greater protection
than the decision whether to submit to chemical testing.24 After applying a choice-of-law analysis,
the Court determined, “Because Schmidt’s convictions were based on
prosecutions that occurred in South Dakota, the protections of the
Minnesota Constitution do not directly apply.”25 Thus, full faith and credit requires
that the South Dakota convictions be tested by the laws of South Dakota.26 Pursuant to Schmidt, if the conviction is valid in the state in which it was entered,
it may be used to enhance a subsequent Minnesota DWI. Which Test? Bergh and Schmidt involved two different issues.
Bergh looked only at the consequences of a drivers
license revocation following an uncounseled
test. Schmidt considered only the consequences of a conviction. Further, Schmidt
focused primarily upon collateral attack of a foreign conviction. The issue of collateral attack does not arise
in a situation where a license is revoked administratively.27 A prior foreign revocation without a conviction
is still subject to scrutiny if it was based upon chemical testing
taken in a state that does not recognize a limited right to counsel
prior to submitting to testing.
The Minnesota Supreme
Court has not yet weighed in on whether prior revocations from other
states may be used to enhance DWI offenses if the revocation was imposed
absent a pre-testing right to counsel.
Until it does, the practitioner should be aware of whether
clients with out-of-state revocations were allowed the opportunity
to consult with counsel prior to submitting to chemical testing. Notes 2 The majority
of states that have considered the issue do not recognize a right
to counsel prior to submitting to chemical tests. Wright
v. State, 703 S.W.2d 850 (Ark. 1986); Cole
v. Dept. of Motor Vehicles, 139 Cal. App. 3d 870 (Cal.App.
1983); Colgan v. State, 623 P.2d 871 (Colo. 1981); State v. Burns, 661 So.2d 842 (Fla. 5th
DCA 1995); Oyler v. State, 333 S.E.2d 690 (Ga. App. 1985);
State v. Taniguchi, 815
P.2d 24 (Haw. 1991); State v.
Ankeny, 704 P.2d 333 (Idaho 1985); Kan. Stat. Ann. §8-1001; State v. Broussard, 517 So.2d 1000 (La. App. 1987); Blomeyer v. State, 871 P.2d 1338 (Mont. 1994);
State v. Greene, 512 A.2d 429 (N.H. 1986);
State v. Panodoli,
262 A.2d 41 (N.J. Super. 1970); Dunn
v. State, 513 P.2d 1404 (Ok. Crim. App. 1973); Commonwealth of
Pennsylvania v. Scott, 684 A.2d 539 (Pa. 1995); DeMangin v. State, 700 S.W.2d 329 (Tex. App. 1985); Commonwealth v. Christie, 8 Va. Cir. 171 (Vir.
Cir. 1986); State v. Berry,
271 S.E.2d 776 (W. Va. 1980); State
v. Reitter, 595 N.W.2d 646 (Wisc.
1999); Wheeler v. State,
705 P.2d 861 (Wy. 1985); See
also State v. Juarez, 775 P.2d 1140 (Ariz. 1989)(recognizing
limited right for purposes of criminal proceeding, but not for license
revocation). 3 Friedman v. Commissioner of Public
Safety, 473 N.W.2d 828, 829
(Minn. 1991). 4 State v. Palmer, 191 N.W.2d 188 (1971);
see also Prideaux v. State, 247 N.W.2d 385 (Minn. 1976). 5 Id. 6 247 N.W.2d 385 (Minn. 1976). 7 Prideaux v. State, 247 N.W.2d 385, 394 (Minn. 1976). 8
Prideaux, at 395. 9
1978 Minn. Laws
Ch.727, §3. 10
Nyflot
v. Commissioner of Public Safety,
369 N.W.2d 512, 515 (Minn. 1985). 11
Nyflot, at 516. 12 Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 833 (Minn. 1991), citing Gerstein v. Pugh, 420 U.S. 103, 122 S.Ct.
854, 43 L. Ed. 2d 54 (1975). 13
For other jurisdictions
recognizing the limited right to counsel prior to chemical testing,
see Copelin
v. State, 659 P.2d 1206 (Alaska 1983); Conn. Gen. Stat. §14-227b(b);
Moore v. Iowa DOT, Motor Vehicle Div.,
473 N.W.2d 230 (Iowa 1991); Brosan v. Cochran,
516 A.2d 970(Md. 1986); Underwood
v. Secretary of State, 448 N.W.2d 779 (Mich. App. 1989); Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975);
People v. Gursey,
239 N.W.2d 351 (N.Y. 1968); State
v. Sadek, 552 N.W.2d 71 (N.D. 1996); Dobbins v. Ohio BMV, 664 N.E.2d 908 (Ohio 1996); Morgan v. Motor Vehicles Div., 736 P.2d
580 (Or. App. 1987); Tenn. Code Ann. §40-7-106;
23 Vermont Stat. Ann. §1202; State
v. Templeton, 59 P.3d 632 (Wash. 2002). 14
Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 835 (Minn. 1991). 15
Minn. Stat. §§169A.03
Subd.
3; 169A.24-169A.27. 16
Minn. Stat. §169A.03,
Subd.
20 (5). 17 State
v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004). 18
Bergh, at 736. 19
Bergh, at 737. 20 Id. 21
State v. Schmidt,
712 N.W. 2d 530 (Minn. 2006). 22
Id. 23 See State v. Warren,
419 N.W.2d 795, 798 (Minn. 1988). 24
Schmidt, at
534. 25
Schmidt, at 536. 26
Id. 27
However, if the defendant
challenged the revocation in the other state and lost, the resulting
judgment should put the revocation squarely within the collateral
attack analysis of Schmidt. KEVIN SIEFKEN
is a shareholder in the Albert Lea firm of Christian & Peterson,
P.A. He is a 1995 graduate
of William Mitchell College of Law. |
