This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Timothy John Berg,
Filed March 27, 2007
Otter Tail County District Court
File No. K5-04-2354
Lori Swanson, Attorney General,
David J. Hauser, Otter Tail County Attorney, Ryan C. Cheshire, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)
Rich Kenly, Kenly Law Office,
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of second-degree driving while impaired (DWI), arguing that the district court erred by admitting allegedly unlawfully obtained blood-test evidence. Appellant contends that a sheriff’s deputy violated his limited right to counsel by not clarifying whether appellant wished to consult an attorney before deciding whether or not to submit to blood-alcohol testing. Because appellant’s statement was not an equivocal or ambiguous request to consult an attorney, the deputy did not have a duty to clarify, and we affirm.
Appellant Timothy Berg was involved
in a single-car accident in
The deputy read to Berg the implied-consent advisory but was interrupted by medical personnel. The deputy read the advisory to Berg again when the treatment ended. Berg stated that he understood his right to consult an attorney. But when the deputy asked if Berg wished to consult an attorney, he answered, “I’m under pain medication and stuff and I don’t think I’m really at a point to—I’m not denying anything but I don’t think it’s right that I should say anything.” The deputy then asked if Berg would submit to a blood test, and Berg consented.
Berg’s test result showed a blood-alcohol concentration over the legal limit, and he was charged with second-degree DWI. Berg filed a motion to suppress the blood-test evidence, arguing that the deputy failed to vindicate his limited right to counsel before he took the test. The district court denied Berg’s motion.
Berg submitted the matter to the
district court on stipulated facts under the procedure in State v. Lothenbach, 296 N.W.2d 854 (
D E C I S I O N
Berg argues that the district court erred by admitting the blood-test evidence because the deputy failed to vindicate his right to counsel.
Drivers have a limited
right to counsel before deciding whether to submit to chemical testing.
Berg contends that his response, “I’m under pain medication and stuff and I don’t think I’m really at a point to—I’m not denying anything but I don’t think it’s right that I should say anything,” shows that he was confused, and his confusion required the deputy to clarify whether or not Berg wanted to consult an attorney. Berg argues that the deputy’s failure to clarify his desire amounts to a violation of his limited right to counsel warranting reversal of his conviction.
Chemical testing in DWI procedures is
not considered an interrogation and thus does not trigger the Fifth-Amendment privilege
against compelled self-incrimination.
Here, Berg stated unequivocally that
he understood his right to counsel, yet when asked whether he wished to consult
an attorney he did not provide a “yes” or “no” answer. Instead, Berg responded that he was on
medication and stated “I don’t think it’s right that I should say
anything.” We conclude that Berg’s
response cannot reasonably be construed as an equivocal or ambiguous request
for counsel that triggers an officer’s duty to clarify.
Berg also argues that the deputy coerced him into making a decision about testing without consulting an attorney. But we find nothing in the record to support such a claim. Berg stated that he understood his rights and that he did not wish to say anything when asked if he wanted to consult an attorney. He then voluntarily agreed to take the test. There is nothing in the record suggesting that the deputy coerced Berg at any point.
The evidence was properly admitted.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.