“Don’t talk to the police without a lawyer.” Generally, the best piece of advice a person can follow when interacting with law enforcement. After all, the Sixth Amendment guarantees the right to counsel and you have the right to not incriminate yourself under the Fifth Amendment. But when do these rights attach during a DWI arrest? If a cop approaches your car during a traffic stop, can you invoke your Fifth and Sixth Amendment rights immediately?

In Minnesota, your right to talk to a lawyer during a DWI investigation does not begin until it reaches a critical stage. Almost all cops will not let you talk to an attorney during a DWI arrest until you reach that critical stage. In Friedman, the Minnesota Supreme Court decided a DWI investigation does not obtain critical-stage status until a cop asks a driver to take to an evidentiary chemical test. This will not happen until the officer reads the Breath Test Advisory (BTA) after a DWI arrest occurs. After a DWI arrest, and in breath-test scenarios, the officer will read the BTA either in the squad car or at the police station. An important question during the BTA is: before deciding to take a breath test, do you wish to consult with an attorney?

If you do want to talk to a lawyer before deciding to take a breath test at the police department, then the police must give you a reasonable amount of time to consult with a lawyer. What is a reasonable amount of time? In Kuhn v. Comm’r of Pub. Safety, the court determined a specific number of minutes alone is not proper to determine whether an amount of time is reasonable. The court evaluated these factors in determining reasonableness: (1) whether the driver made a good faith and sincere effort to reach an attorney; (2) the time of day; and (3) the length of time the driver was under arrest. This is a nonexclusive list; therefore, a court should evaluate the totality of the circumstances in each case to determine whether a reasonable amount of time passed.

Often, if you ask to speak with a DWI lawyer during this critical stage, then you may get access to your own phone. You can then search the internet for a DWI lawyer and call them for advice. You can also call a non-lawyer and ask them to contact a lawyer for you. In these situations, State v. Karau, requires you to tell the cop you are calling a non-lawyer to get an attorney for you. If you frustrate the process, or unreasonably delay it, the officer may end your attorney time. If they do not let you use your own phone to contact a lawyer, law enforcement must provide you access to a phone and phone books to find an attorney. There are many recent developments in Minnesota DWI laws; thus, staying current on your rights is important. Contact us for a consultation at no charge.


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