You are killing me Smalls. Smalls would be both the Court of Appeals and the Supreme Court. Give us something. Supreme Court is too busy disciplining attorneys. Which to be fair, is a full time. The COA is not publishing any criminal cases and unpublishing only ten down from a typical 30 or so. So are not given much to work with here. But was it over when the Germans bombed Pearl Harbor? We are going to keep on blogging you because it is the only thing I want to do. That sounds like a prelude for a crim sex case but at least they will be some action in the courts somewhere. So the week of October 30, 2017, we are going to talk about your right, your constitutional right to make a call. Every depiction of jail in on TV indicates you get to make one phone call. That is not true. But when you get a DWI you get phone time. Let’s talk about that now.
The case is State v. Carter, A16-1818. Mr. Carter was arrested around 3:00 A.M. for driving on the shoulder and spraying water. Spraying water is only allowed if you are intentionally discharging a super soaker water rifle. The trooper was alongside him and he was not wearing a seatbelt and talking on his cell. The trooper thought that Carter was lit. Not in the cool way that kids say things are lit. He was arrested and taken to the jail where he was asked if he wanted to call an attorney. Carter did. The trooper gave him a landline phone, telephone books, and allowed him to use his cell phone. Carter’s phone time lasted for 32 minutes. His phone time was a mixed bag. He talked to an attorney at one point but also made personal calls and discussed setting up bail as opposed to discussing whether or not he should take a breath taste. 12 different times the trooper had to remind him to not make personal calls. Carter also asked several questions to the trooper like what county he was in (oof) what was he arrested for (oof) and how many prior DWI’s he had (oof again). Toward the end of the call the trooper said you have had enough phone time and asked Carter if he would take a test. Carter said “why not,” and “sure.” He submitted a test of .179 and .19. He was charged with second degree DWI. One prior and a test over. 16. He argued the trooper’s interruptions made it so his phone time was not vindicated. The district court said no way and he appealed.
Here is the law.
A driver has the right to obtain legal advice prior to deciding whether to submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). This limited right is vindicated if a DWI arrestee “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Id. (quotation omitted); see State v. White, 504 N.W.2d 211, 213 (Minn. 1993) (extending right to criminal proceedings). There is no fixed amount of time that constitutes a “reasonable time.” Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 713 (Minn. App. 2008). We consider the totality of the circumstances in determining whether a reasonable time was provided. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). We look to the officer’s duties in vindicating the right to counsel, as well as the arrested driver’s diligence in exercising the right. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992).
Carter loses here because he had over thirty minutes to make calls. He was given a landline and telephone books which makes me think he was arrested and taken to a museum. He also had his cell phone so he could use IMDB for Val Kilmer movies. We have previously stated that when a defendant is able to consult with an attorney, his rights are vindicated. Kuhn, 488 N.W.2d at 841-42. But see McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (stating that merely speaking to an attorney does not vindicate an arrestee’s right if the attorney is unwilling to provide advice).
Carter says the trooper interrupted him and that was rude but he was interrupted to stay on task and not set up bail.A DWI arrestee “must make a diligent effort to contact an attorney.” Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). An officer need not allow an arrestee “unfettered use of a telephone to call friends or relatives, unless the driver specifies that the reason for the calls is to contact an attorney.” McNaughton, 536 N.W.2d at 915. An officer’s constant interruptions could restrict an arrestee’s right to consult with an attorney to such a degree that the arrestee’s right is not vindicated. “Police officers must assist in the vindication of the right to counsel.” Mulvaney, 509 N.W.2d at 181. However, it was Carter who engaged in delay tactics and the trooper’s actions were reasonable. Carter loses.
So when/if you get phone time in a DWI, a couple of pieces of advice. First, call an attorney. Facetime would be preferred. Second, know what county you are in. If you want to set up bail when you are supposed to be calling an attorney is helpful if you know where you are. Third, if you don’t want to be interrupted don’t ask the officer questions. Stay on the phone and tell the officer you want your phone time vindicated and you want it vindicated now.
