of Appeals Office of Appellate Courts
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.
J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota,
for amicus curiae Minnesota Association of Criminal Defense
William A. Lemons, Saint Paul, Minnesota, for amicus curiae
Minnesota County Attorneys Association.
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.
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.
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.
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.
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.
State charged Rosenbush with fourth-degree DWI, Minn. Stat.
§§ 169A.20, subd. 1(1), 169A.27
(2018). 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.
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.
granted Rosenbush's petition for review.
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).
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)).
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.
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