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State v. Rosenbush

Supreme Court of Minnesota

July 10, 2019

State of Minnesota, Respondent,
v.
Jennifer Marie Rosenbush, Appellant.

          Court of Appeals Office of Appellate Courts

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Anna Light, Heather Pipenhagen, Assistant Dakota County Attorneys, Hastings, Minnesota, for respondent.

          Jeffrey S. Sheridan, Sheridan & Douglas, P.A., Eagan, Minnesota, for appellant.

          Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota, for amicus curiae Minnesota Association of Criminal Defense Lawyers.

          William A. Lemons, Saint Paul, Minnesota, for amicus curiae Minnesota County Attorneys Association.

         SYLLABUS

         The limited right to counsel established in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991), does not apply when an individual is asked to submit to a blood test pursuant to a warrant.

         Affirmed.

          OPINION

          McKEIG, JUSTICE.

         In 2017, a sheriff's deputy arrested appellant Jennifer Rosenbush for driving while impaired ("DWI") and obtained a search warrant to take a sample of her blood for alcohol concentration testing. When the deputy presented Rosenbush with the search warrant, he read her the newly enacted implied-consent advisory for blood and urine tests. It informs drivers only that "refusal to submit to a blood or urine test is a crime." See Minn. Stat. § 171.177, subd. 1 (2018). Rosenbush allowed her blood to be drawn, and tests showed that she had an alcohol concentration over the legal limit.

         The State charged Rosenbush with fourth-degree DWI and Rosenbush moved to have the results of her blood test suppressed. She argued that, under our decision in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991), she had a limited right under the Minnesota Constitution to consult with counsel before deciding whether to submit to a blood test and that police failed to vindicate that right. The district court agreed and suppressed the results of Rosenbush's blood test. The court of appeals reversed. We hold that the limited right to counsel established in Friedman does not apply when an individual is asked to submit to a blood test pursuant to a warrant, and therefore, we affirm the court of appeals.

         FACTS

         On July 23, 2017, police stopped Rosenbush on suspicion that she had driven into a ditch, hit a road sign, and left the scene of the accident. When questioned by a Dakota County sheriff's deputy, Rosenbush admitted that she had been in the accident. She also smelled mildly of alcohol, was crying, and was slow to respond to questions. The deputy questioned Rosenbush further, and she told him that she had consumed "two to three beers" earlier that day. In addition, when asked how intoxicated she felt on a scale from one to ten, she said four. The deputy asked Rosenbush to step out of her vehicle and perform field sobriety tests, but she refused. Eventually, Rosenbush cooperated with a preliminary breath test, and it showed that her alcohol concentration was over the legal limit.

         The deputy arrested Rosenbush for DWI. Instead of taking her to jail, however, an ambulance took Rosenbush to a hospital to be placed on a mental health hold because she told the deputy that she was feeling suicidal. While Rosenbush was being transported to the hospital, the deputy's supervisor obtained a search warrant for a blood sample from Rosenbush. The supervisor faxed the warrant to the hospital, and the deputy gave it to Rosenbush when he arrived. After serving Rosenbush with the warrant, the deputy read her the implied-consent advisory for blood and urine tests required by Minn. Stat. § 171.177, subd. 1. The advisory informs drivers that "refusal to submit to a blood or urine test is a crime." Rosenbush let a nurse draw her blood, and chemical testing showed that her alcohol concentration was over the legal limit.

         The State charged Rosenbush with fourth-degree DWI, Minn. Stat. §§ 169A.20, subd. 1(1), 169A.27 (2018).[1] Rosenbush moved to suppress the results of her blood test, arguing that she had a limited constitutional right to consult with counsel before submitting to the test under Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991), and that the deputy failed to vindicate that right. The district court agreed and suppressed the results of Rosenbush's blood test.

         The State appealed the district court's pretrial suppression order and the court of appeals reversed. The court of appeals reasoned that Rosenbush was not presented with the same "unique choice" as the driver in Friedman because the deputy did not "ask[] Rosenbush whether she would agree to take a blood test or [tell] her that no test would be given if she chose not to submit." State v. Rosenbush, No. A18-0377, 2018 WL 3340530, at *4 (Minn.App. July 9, 2018). According to the court of appeals, because the deputy did not give Rosenbush "a choice between alternatives that carried different, significant, legal ramifications," she did not have a limited right to counsel under Friedman. Id.

         We granted Rosenbush's petition for review.[2]

         ANALYSIS

         The issue before us is whether a driver arrested on suspicion of DWI, read an implied-consent advisory, and presented with a search warrant authorizing a search of her blood has the right "to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing" under Article I, Section 6 of the Minnesota Constitution. Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). This is a question of constitutional law that we review de novo. State v. Hunn, 911 N.W.2d 816, 818 (Minn. 2018).

         Article I, Section 6, of the Minnesota Constitution provides: "In all criminal prosecutions the accused shall . . . have the assistance of counsel in his defense." We have held that this right applies at all "critical stages" of a criminal prosecution. Friedman, 473 N.W.2d at 833. A proceeding or event is a critical stage if" 'the accused require[s] aid in coping with legal problems or assistance in meeting his adversary.'" Id. (quoting United States v. Ash, 413 U.S. 300, 313 (1973)). In addition, a critical stage "includes 'those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.'" Id. (quoting Gerstein v. Pugh, 420 U.S. 103, 122 (1975)).

         To analyze Rosenbush's right-to-counsel claim, we must first address our case law that sets out when a request for alcohol concentration testing under the implied-consent law is a "critical stage" of a criminal prosecution under the Minnesota Constitution. We must also address recent changes to the implied-consent law that are relevant to Rosenbush's claim. We begin with an explanation of Minnesota's implied-consent law.

         The implied-consent law mandates-as a condition of the privilege to drive in Minnesota-that any person who is in physical control of a motor vehicle within the state "consents . . . to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of . . . an intoxicating substance." Minn. Stat. § 169A.51, subd. 1(a) (2018). If a person does not honor that condition and refuses to permit chemical testing, the law requires that "a test must not be given." Minn. Stat. §§ 169A.52, subd. 1, 171.177, subd. 13 (2018). But as a consequence of the refusal, the Commissioner of Public Safety must revoke that person's driver's license. Minn. Stat. §§ 169A.52, subd. 3, 171.177, subd. 4 (2018). License revocation is only available if police read a driver the implied-consent advisory when requesting a test. Minn. Stat. §§ 169A.51, subd. 2, 171.177, subd. 1 (2018); see also Tyler v. Comm'r of Pub. Safety, 368 N.W.2d 275, 280 (Minn. 1985) ("Compliance with the ...


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