Where Implied Consent Not Invoked Failure to Advise Motorist of Limited Right to Counsel Does Not Bar Admissibility of Test Result

State v. Hunn, Minn.Ct.App., 6/19/2017.  If an officer does not invoke the implied consent statute by reading it to the motorist, the state may still be able to introduce any test result during that motorist's DWI prosecution.  On the other hand, when an officer does invoke the implied consent statute by reading it to the motorist the officer must inform the motorist that she has a limited right to consult with counsel, that refusal, itself, is a crime, and that refusal will result in revocation of license.  The deputy sheriff who stopped Mr. Hunn did not invoke the implied consent statute and so did not inform him of his limited right to consult with counsel.  

Mr. Hunn persuaded persuaded the trial court to suppress the test results because the deputy did not tell him of his limited right to consult with counsel.  The state appealed and the court of appeals reverses that ruling.  In reaching this result the court relies upon cases that long precede McNeeley and its progeny which, the court proclaims, say that compliance with the implied consent statute is not a prerequisite for admissibility of tests for the presence of alcohol or other substances. Here's how the court of appeals sums up:

Here, as in Nielsen, and unlike the facts presented in Friedman, the deputy did not read respondent the implied-consent advisory or seek chemical testing under the implied consent law. This distinction from the facts of Friedman is significant. As a result, respondent’s decision regarding whether to consent to testing never carried a possibility of immediate license-revocation sanctions or criminal prosecution for test refusal. Instead, respondent only “faces the traditional [criminal] penalties for driving under the influence, and imposition of those penalties only after a jury trial at which he has the right to counsel.” Nielsen, 530 N.W.2d at 215. Accordingly, “[t]he process of chemical testing in this case was merely an investigatory stage which necessarily preceded the decision to prosecute.”

Mr. Hunn also argued that his consent to testing was coerced or otherwise suspect.  Because the trial court did not address this issue the court of appeals sent the case back for consideration of that claim.