State v. Carlson

Court of Appeals of Minnesota

State v. Carlson

399 N.W.2d 625, 1987 Minn. App. LEXIS 4007

CourtCourt of Appeals of Minnesota

DecidedJanuary 27, 1987

DocketNo. C9-86-1306

StatusPublished

This text of 399 N.W.2d 625 (State v. Carlson) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Carlson, 399 N.W.2d 625, 1987 Minn. App. LEXIS 4007 (Mich. Ct. App. 1987).

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Opinion

MEMORANDUM OPINION

PARKER, Judge.

This appeal is from a judgment of conviction for driving while under the influence and driving with an alcohol concentration of .10 or more. Appellant Ricky Carlson contends the Intoxilyzer test results should have been suppressed because he was not allowed to speak with counsel before taking the test. We affirm.

FACTS

According to the stipulation of facts, Carlson was lawfully stopped on December 29, 1984, observed by a North Branch police officer, and arrested on suspicion of DWI. He was then read the implied con[626]*626sent advisory. Carlson agreed to take a breath test and was taken to the Chisago County jail.

At the jail Carlson was turned over to sheriff’s department personnel for administration of the Intoxilyzer test. The police officer then spoke with Carlson’s parents, who had arrived at the jail after a telephone call from Carlson. The officer told them their son would be taking the Intoxi-lyzer test. They said an attorney was on the way to the jail. When the attorney arrived, the officer informed him that Carlson was taking the breath test and denied his request to talk with Carlson at that time. The officer told the attorney he could consult with Carlson after the test.

The Intoxilyzer test showed an alcohol concentration of .18. Carlson was then allowed to speak with the attorney and with his parents.

Based on the stipulated facts, the trial court found Carlson guilty of DWI and driving with an alcohol concentration of .10 or more. Sentencing was stayed pending appeal of the issue of denial of the right to counsel.

DECISION

The issue of the right to consult with counsel before deciding whether to submit to chemical testing was decided in Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985), appeal dismissed, — U.S. -, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). The court in Nyflot held there is neither a statutory nor a constitutional right to consult with counsel before making that decision. Id. at 513. This holding applies when test results are later sought to be used in a criminal prosecution for DWI. See State v. Bebel, 383 N.W.2d 724, 726 (Minn.Ct.App.1986) (applying Nyflot). The holding applies regardless of the attorney’s location at the time of the request. We find no basis for distinguishing this case from Nyflot.

Affirmed.

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MEMORANDUM OPINION

PARKER, Judge.

This appeal is from a judgment of conviction for driving while under the influence and driving with an alcohol concentration of .10 or more. Appellant Ricky Carlson contends the Intoxilyzer test results should have been suppressed because he was not allowed to speak with counsel before taking the test. We affirm.

FACTS

According to the stipulation of facts, Carlson was lawfully stopped on December 29, 1984, observed by a North Branch police officer, and arrested on suspicion of DWI. He was then read the implied con[626]*626sent advisory. Carlson agreed to take a breath test and was taken to the Chisago County jail.

At the jail Carlson was turned over to sheriff’s department personnel for administration of the Intoxilyzer test. The police officer then spoke with Carlson’s parents, who had arrived at the jail after a telephone call from Carlson. The officer told them their son would be taking the Intoxi-lyzer test. They said an attorney was on the way to the jail. When the attorney arrived, the officer informed him that Carlson was taking the breath test and denied his request to talk with Carlson at that time. The officer told the attorney he could consult with Carlson after the test.

The Intoxilyzer test showed an alcohol concentration of .18. Carlson was then allowed to speak with the attorney and with his parents.

Based on the stipulated facts, the trial court found Carlson guilty of DWI and driving with an alcohol concentration of .10 or more. Sentencing was stayed pending appeal of the issue of denial of the right to counsel.

DECISION

The issue of the right to consult with counsel before deciding whether to submit to chemical testing was decided in Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985), appeal dismissed, — U.S. -, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). The court in Nyflot held there is neither a statutory nor a constitutional right to consult with counsel before making that decision. Id. at 513. This holding applies when test results are later sought to be used in a criminal prosecution for DWI. See State v. Bebel, 383 N.W.2d 724, 726 (Minn.Ct.App.1986) (applying Nyflot). The holding applies regardless of the attorney’s location at the time of the request. We find no basis for distinguishing this case from Nyflot.

Affirmed.

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399 N.W.2d 625, 1987 Minn. App. LEXIS 4007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carlson-minnctapp-1987.

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