Friedman v. Commissioner of Public Safety

Decision Date07 June 1991
Docket NumberNo. C9-89-1708,C9-89-1708
Citation473 N.W.2d 828
PartiesJoy Marie FRIEDMAN, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
CourtMinnesota Supreme Court

Syllabus by the Court

1. The Minnesota Constitution, article I, section 6 gives the appellant a limited right to consult an attorney before deciding whether or not to submit to chemical testing for blood alcohol.

2. Minnesota Statutes section 169.123, subdivision 2(b)(4) (1990) violates rights protected by article I, section 6 of the Minnesota Constitution because the statute denies a person the right to counsel at a critical stage of a criminal proceeding.

William R. Kennedy, Mark D. Fiddler and Peter Gorman, Asst. Hennepin County Public Defenders, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Joseph Plumer, Sp. Asst. Atty. Gen., Public Safety Div., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

YETKA, Justice.

On March 12, 1989, the Commissioner of Public Safety issued to Joy Marie Friedman a notice and order of revocation of her driver's license for 1 year for refusing to take an implied consent breath test. Friedman sought judicial review, but the revocation was sustained in an order by the district court. The district court was affirmed by the Minnesota Court of Appeals. 455 N.W.2d 93. We reverse.

On the evening of March 12, 1989, Joy Friedman was arrested by a Minneapolis police officer for DWI following her failure of a preliminary breath test. The officer took Friedman to the police station for an intoxilyzer test. They were forced to wait 25 minutes because the testing unit was in use. Friedman asked what her rights were and whether she could consult an attorney. The officer did not allow her to contact an attorney.

During the wait, another officer took Friedman into a video taping room. He questioned her on tape. The arresting officer read the implied consent advisory to Friedman. The advisory stated that Friedman's driver's license would be revoked for 1 year if she refused the chemical test for blood alcohol, that the refusal or the results of the test would be used against her at trial, and that she had a right to consult an attorney after testing. The officer read the advisory three times. Friedman told him that she didn't understand the advisory and that she had already been tested in the squad car. The police took Friedman's response as a refusal to be tested, and her driver's license was revoked for 1 year pursuant to Minn.Stat. Sec. 169.123, subd. 4 (1990).

The issue before this court is: When does the right to counsel in a DWI proceeding attach?


The right to counsel is a long-established principle in this nation. Under the common law of England, those accused of felonies had no right to retain counsel. See W. Beaney, The Right to Counsel in American Courts 8-9 (1955). In 1695, Parliament enacted a statute which permitted those accused of treason to retain counsel, but for all other felonies, there was no such provision until 1836. Id. at 9. Illogically, for minor offenses, including libel, perjury, battery, and conspiracy, counsel was permitted. Id. at 8. Blackstone denounced the English rule as inhumane. 4 W. Blackstone, Commentaries * 355 (cited in Powell v. Alabama, 287 U.S. 45, 60-61, 53 S.Ct. 55, 60-61, 77 L.Ed. 158 (1932)).

The American colonies rejected the harsh English rule. Even before the federal Constitution was adopted, the constitutions of Maryland, Massachusetts, New Hampshire, New York and Pennsylvania granted the accused in criminal proceedings the right to There is no history of the intentions surrounding the adoption of the right to counsel embodied in the sixth amendment of the United States Constitution. The sixth amendment provides: "In all criminal prosecutions, the accused shall * * * have the assistance of counsel for his defense." U.S. Const. amend. VI. Although there was debate over other amendments, including religious freedom, free speech and free press, and the right to bear arms, there was no such debate over the clause granting assistance of counsel in criminal proceedings. See I Annals of Congress 756 (proposing right to counsel), 757-60 (religious freedom), 731-49 (free speech and free press), 749-56 (right to bear arms) (1834). It may be that the federal courts were perceived to have jurisdiction over only a small number of criminal cases. W. Beaney, supra, at 25. The extent of the right to counsel thus was left implicitly to be determined by the states.

                retain counsel.  Powell v. Alabama, 287 U.S. 45, 61-62, 53 S.Ct. 55, 61-62, 77 L.Ed. 158 (1932).  Delaware, North Carolina, South Carolina, Virginia, Connecticut, Georgia, and Rhode Island early in their history adopted constitutional or statutory provisions guaranteeing the right to counsel.  Id. at 62-64, 53 S.Ct. at 61-62.   When James Madison drafted the federal Bill of Rights, he drew upon existing provisions in various state constitutions.  Force, State "Bills of Rights":  A Case of Neglect and the Need for a Renaissance, 3 Val.U.L.Rev. 125, 136 (1969)

State courts always have had the power to interpret their own constitutions. Before the fourteenth amendment was adopted, state courts determined questions of individual rights exclusively according to state constitutions. See Fleming & Nordby, The Minnesota Bill of Rights: "Wrapt in the Old Miasmal Mist", 7 Hamline L.Rev. 51, 56 (1984).

In recent years, as the United States Supreme Court has retrenched on Bill of Rights issues, state courts have begun to interpret expansively the rights guaranteed under their own state constitutions. 1 Commentators have noted and encouraged the trend. See, e.g., Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Countryman, Why a State Bill of Rights?, 45 Wash.L.Rev. 454 (1970); Falk, The State Constitution: A More Than "Adequate" Non Federal Ground, 61 Calif.L.Rev. 273 (1973); Fleming & Nordby, The Minnesota Bill of Rights: "Wrapt in the Old Miasmal Mist", 7 Hamline L.Rev. 51 (1984); Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val.U.L.Rev. 125 (1969); Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U.Balt.L.Rev. 379 (1980); Morris, New Horizons for a State Bill of Rights, 45 Wash.L.Rev. 474 (1970).

State courts must follow the United States Supreme Court in matters of federal constitutional law. They are free to interpret their own law, however, so as to provide greater protection for individual rights than that which the federal Constitution minimally mandates. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). Rulings which rest on adequate independent state grounds are not subject to review by the United States Supreme Court. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 462-64, 89 L.Ed. 789 (1945) (United States Supreme Court's "only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights").

In their expansion of the rights of individuals, states have been particularly attentive to the protection of those citizens accused of crimes. 2 The United States Supreme Minnesota has a long tradition of assuring the right to counsel. Article I, section 6 of the Minnesota Constitution requires that "[i]n all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel in his defense." Minn. Const. art. I, Sec. 6. Minnesota Statutes All officers or persons having in their custody a person restrained of liberty upon any charge or cause alleged, except in cases where imminent danger of escape exists, shall admit any resident attorney retained by or in behalf of the person restrained, or whom the restrained person may desire to consult, to a private interview at the place of custody. Such custodians, upon request of the person restrained, as soon as practicable, and before other proceedings shall be had, shall notify any attorney residing in the county of the request for a consultation with the attorney. Every officer or person who shall violate any provision of this section shall be guilty of a misdemeanor and, in addition to the punishment prescribed therefor shall forfeit $100 to the person aggrieved, to be recovered in a civil action.

Court has recognized the right of a state, under its own law, "to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). A number of states have interpreted their own constitutions to grant a more expansive right to counsel to those accused of crimes than the right afforded by the sixth amendment of the federal Constitution. 3 section 481.10, which has been the law in this state since 1887, provides:

Minn.Stat. Sec. 481.10 (1990). In State v. Schabert, 218 Minn. 1, 9, 15 N.W.2d 585, 589 (1944), we construed the statute and held that interrogation of an accused person was a "proceeding."


We turn now to our case law in the area of DWI proceedings. The respondent relies on State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), where we held that, under the Minnesota Constitution, the right to counsel does not extend to a DWI license revocation because of the civil or administrative nature of the proceeding. Id. at 306, 191 N.W.2d at 190. However, we subsequently questioned the validity of the "civil" label of the DWI license revocation proceeding in Prideaux v. State, Dep't of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976):

The bases of all these [cases denying the right to counsel], including our decision in Palmer, have been that driver's license revocation is a civil proceeding, and, as a corollary, that the taking of a chemical test is not a "critical stage" in a criminal prosecutio...

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