30 Minutes Insufficient Time to Vindicate Right to Counsel

State of Minnesota vs. Christopher Charles Tupper, filed December 31, 2007:

A Minneapolis police officer arrested the Defendant on suspicion of DWI after the Defendant was administered a preliminary breath test that indicated a blood alcohol content of .145.

At 2:45 a.m., before asking Defendant to submit to chemical testing, the officer gave Defendant a telephone and telephone books to assist him in contacting an attorney. During the next 30 minutes, Tupper made several unsuccessful attempts to contact and consult with an attorney. At 3:16 a.m., the officer told Tupper that he could make no more calls and that he would need to decide whether he would submit to chemical testing without the advice of counsel.

Unsure of how a decision to submit to testing would effect his CDL license, the Defendant requested 15 more minutes to contact an attorney. This request was refused by the officer. The Defendant refused to submit to testing.

Prior to trial, the Defendant moved to suppress his refusal on the grounds that his right to counsel was not vindicated. The district court judge held that the Defendant had been given a fair and reasonable opportunity to contact an attorney and denied the Defendant's motion.

The court of appeals reversed. The court examined the Minneapolis Police Department's policy of allowing only 30 minutes to contact an attorney. Concluding that time alone is not a determinative factor, the court held:

Here, the only rationale articulated by the officer for ending Tupper’s attempts to contact an attorney at 3:16 a.m. was a 30-minute limit imposed by Minneapolis Police Department policy, which applies regardless of the time of day that a driver is attempting to contact an attorney. This court has decided that “basing the ‘reasonable’ time criteri[on] on a specific number of elapsed minutes alone is improper.” Kuhn, 488 N.W.2d at 842 (emphasis added). Accordingly, we conclude that the officer’s decision to stop Tupper’s attempts to contact an attorney—based solely on the 30-minute policy—did not afford Tupper a reasonable time to contact and consult with an attorney. Consequently, Tupper’s limited right to counsel was not vindicated.