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Tuesday, February 5, 2008

More criticism of Minnesota's implied-consent scheme

In an article in this week's Minnesota Lawyer, prosecutors and defenders discuss recent changes to DUI law. One defense attorney even goes so far as to say that the state’s entire DUI-enforcement scheme is coming unraveled. Several DUI defense lawyers in the story cite the Court of Appeals' decision in State v. Netland for the proposition that the state's “implied consent” framework violates the Fourth Amendment. (The argument goes like this: Because it is a crime in Minnesota to refuse to consent to a blood-alcohol test in Minnesota, the consent is not really voluntary and results of tests taken without a warrant should be excluded.)

Meanwhile, in a Feb. 4 ruling in Culberson v. Commissioner, Hennepin County District Court Judge Jack Nordby weighed in on a different issue in the implied-consent debate -- right to counsel. Finding that police had violated a driver's Sixth Amendment rights, Nordby rescinded a driver’s license revocation. The driver in the case had agreed to take a blood-alcohol test, but a passenger in the car called an attorney. The attorney called the police station during the test, but the officer administering it did not stop it despite being aware of the lawyer's call.

Nordby wrote: "Where a lawyer has presented himself to a police agency, in person or by telephone, on behalf of a detainee, at a time when the lawyer’s advice may conceivably be of benefit to the detainee, and there are no obvious reasons why it would be overwhelmingly burdensome to do so, the police must at the very least allow the detainee to make an informed decision as to whether he wishes to consult with the lawyer before he begins a test or continues with one in progress, even when the detainee has earlier declined counsel."

And here is the money quote from Nordby's opinion: “The law in Minnesota relating to what is inventively referred to as ‘implied consent’ is complex, ever changing, and philosophically specious.”

The case is likely to go to the Court of Appeals. Stay tuned.

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