No stinking 5th amendment in North Dakota??? Original Article Posted on Fri, Mar. 03, 2006 ND drunken driving convictions can't be used in Minnesota cases DALE WETZEL Associated Press BISMARCK, N.D. - North Dakota drunken driving convictions can't be used against drivers in Minnesota cases, because North Dakota motorists may not be told of their rights before they are tested for alcohol, the Minnesota Court of Appeals says. The ruling came in two appeals from Clay County, Minn., brought by two drivers who were arrested separately in Moorhead in May 2004. Nathan Schuster, 30, of neighboring Fargo, and Wade Little Owl, 31, of Moorhead, challenged the prosecution's use of their North Dakota drunken driving convictions to bring harsher Minnesota charges against them for driving while impaired. North Dakota law does not require motorists to be told of their right against self-incrimination before they are given a blood or breath test. Therefore, the Minnesota court ruled, the North Dakota convictions of Schuster and Little Owl cannot be used against them in their Minnesota cases. Schuster has an October 1998 conviction in North Dakota for driving under the influence, while Little Owl has had three North Dakota convictions for DUI or refusing a breath test in the past 10 years, the opinion says. Ken Kohler, the Clay County prosecutor, said Friday that his office will appeal the decision to the Minnesota Supreme Court. The ruling was handed down Jan. 31. "Obviously, when you're on a border county ... a large number of people drive back and forth, and if we can't use North Dakota convictions, it's difficult to hold someone accountable," Kohler said. "Certainly there's a safety issue to the community in allowing these individuals not to have harsher sentences for repeat DWI offenses, which this certainly does." Minnesota requires that drivers be told of their right to remain silent and to speak to an attorney before they take a chemical test to judge possible impairment. North Dakota Supreme Court rulings say a driver must have a "reasonable opportunity" to consult a lawyer before taking a test if he or she requests legal counsel. However, police are not required to inform drivers of their rights. "Because North Dakota does not require that motorists be informed of their right to counsel prior to chemical testing, the right loses its meaningful purpose in practical application," the appeals court's opinion says. "Given that the purpose of the right to counsel is to protect individuals unfamiliar with the legal system, it is implicit that those individuals first be informed that such a right exists." Wayne Stenehjem, North Dakota's attorney general, said he did not believe it is necessary for law officers to routinely advise DUI suspects of their right to a lawyer, although he said many do. In North Dakota, motorists who refuse a chemical test have their driving privileges suspended for a year. Typically, attorneys tell their clients they must choose between taking the test or having their licenses taken, Stenehjem said. "There's not a whole lot of expert legal advice that any attorney can give in that situation," Stenehjem said. "I've done this. This is what you tell them. If you don't consent to the test, then that means you're going to lose your license for a year ... if there was probable cause to arrest you in the first place." The case was heard by judges Randolph Peterson, Gordon Shumaker and Edward Toussaint Jr., who is chief judge of the appeals court. ON THE NET Text of Minnesota appeals court decision: http://www.lawlibrary.state.mn.us/archive/ctappub/0601/opa042278-0131.htm