931 N.W.2d 91
Minn.2019Background
- In July 2017, Jennifer Rosenbush was arrested on suspicion of DWI, taken to a hospital, and a search warrant was obtained for a blood draw; officers read the statutorily required implied-consent advisory for blood/urine tests (which states only that refusal is a crime).
- Rosenbush submitted to the blood draw; testing showed alcohol concentration above the legal limit. She was charged with fourth-degree DWI and later moved to suppress the blood-test results.
- Rosenbush argued under Friedman v. Comm’r of Pub. Safety that Minnesota’s Constitution grants a limited right to consult counsel after an implied-consent advisory and before deciding whether to submit to chemical testing, and that police failed to vindicate that right.
- The district court granted suppression; the court of appeals reversed, reasoning that the presence of a warrant made the situation different from Friedman. The state supreme court granted review.
- The Minnesota Supreme Court majority held that Friedman’s limited right to counsel does not extend to situations where testing is sought pursuant to a search warrant and therefore affirmed the court of appeals; three justices dissented.
Issues
| Issue | Plaintiff's Argument (Rosenbush) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Friedman’s limited right to counsel (right to reasonable opportunity to consult counsel after implied-consent advisory) applies when blood testing is sought pursuant to a search warrant | Rosenbush: reading the advisory invoked the implied-consent regime and produced the same "unique decision"—submit and risk incriminating evidence or refuse and suffer license revocation/criminal refusal—so Friedman applies even with a warrant | State: the presence of a warrant fundamentally changes the encounter; a neutral magistrate has authorized the search, and warranted searches are not the same "unique decision" Friedman addressed | Court: Friedman does not apply to blood/urine testing executed pursuant to a search warrant; limited right to counsel not triggered |
| Whether statutory choice to refuse a warrant-based blood test requires extending Friedman | Rosenbush: statutes still allow a driver to refuse even to a warrant and refusal carries consequences, so the constitutional need for counsel remains | State: many contexts involve choices to resist warrants; that general availability of a choice does not create the unique decision Friedman targeted | Court: statutory refusal does not make warranted searches equivalent to the Friedman context; no extension warranted |
| Whether the presence of a warrant ameliorates concerns animating Friedman (neutral review, protection of rights) | Rosenbush: warrant does not address need for legal advice about ramifications and counsel’s protective role | State: warrant interposes a neutral magistrate and reduces the asymmetry Friedman addressed; Fourth Amendment safeguards lessen need for counsel at that moment | Court: presence of a warrant and judicial oversight alleviates Friedman’s concerns; thus no right to counsel is required |
| Whether changes to the impaired-driving statutes (criminalizing refusal) alter the analysis | Rosenbush: higher-stakes penalties make counsel more necessary; advisory is minimal so counsel is needed to explain consequences | State: changes narrow the utility of counsel because penalties for refusal/failure are now similar; less explanation is required | Court: statutory changes cut against the utility of counsel here and support declining to extend Friedman |
Key Cases Cited
- Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991) (recognized limited right to consult counsel after implied-consent advisory for chemical testing)
- State v. Hunn, 911 N.W.2d 816 (Minn. 2018) (reaffirmed that Friedman’s limited right is tied to the advisory reading)
- Schmerber v. California, 384 U.S. 757 (1966) (discussed warrants and protection against unwarranted intrusions into bodily integrity)
- Riley v. California, 573 U.S. 373 (2014) (noting the role of neutral magistrate and protections attendant to warrants)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (distinguished breath and blood testing with respect to warrant/exigent‑circumstance analysis)
- Missouri v. McNeely, 569 U.S. 141 (2013) (held that dissipation of alcohol does not alone always justify warrantless blood draws)
- United States v. Ash, 413 U.S. 300 (1973) (quoted for the proposition that counsel is required at stages where the accused meets the adversary)
- Gerstein v. Pugh, 420 U.S. 103 (1975) (pretrial procedures that impair defense can constitute critical stages)
- United States v. Gouveia, 467 U.S. 180 (1984) (discussed Sixth Amendment right to counsel attachment)