On Monday, the Minnesota Court of Appeals decided Tyler Lee Johnson v. Commissioner of Public Safety. The opinion touches upon a number of different issues surrounding implied consent law, but it can be summed up succinctly with the following: if the police say you can lose your license for refusing a warrantless blood or urine test and you refuse, the Commissioner of Public Safety cannot revoke your driver’s license. This is because such a statement is not only untrue, but also unconstitutional, and in that situation, implied consent criminal penalties and any subsequent civil penalties simply do not apply. We already know that the police cannot criminalize refusing warrantless blood and urine tests thanks to Thompson and Trahan. And now, we also know that the Commissioner of Public Safety cannot revoke a driver’s license for anyone who refuses a warrantless blood or urine test.
But let’s back up to the facts. Tyler Lee Johnson got into an accident around last Thanksgiving, crashing his car into a tree. When the police arrived, they found a bottle of pills in his car. In these situations, signs often point to impairment, but not to alcohol use. The police can decide to read the implied consent advisory and ask for a breath test, and even attach criminal penalties, but a breath test is useless when alcohol is not involved. So, instead, the police read the advisory, specifically the portion referring to criminal penalties, without revealing which test is actually required, then ask for a blood or urine test. This is what happened to Tyler. He refused and his license was suspended. He cried foul to the district court and won. The commissioner of public safety appealed and lost. But why?
Due Process Violation, Not Fourth Amendment.
As defense lawyers, we are trained to go after evidence the state will try and use in its case against our clients and get it excluded. The Fourth Amendment, which prohibits the state from using evidence acquired during illegal searches and seizures, is the bread and butter of these challenges. The Fourth Amendment, however, comes with exceptions, and one of those is the “good faith” exception. That is, if police are acting under the “good faith” that they are applying the law correctly, the evidence comes in anyway. As you can imagine, after these cases were handed down, many defendants had cases pending where they ended up “agreeing” to take a urine test after being read an unconstitutional advisory discussing criminal penalties. Once a law is unconstitutional, it is as if it always was; however, the officers did not know this at the time. Therefore, the “good faith” exception might keep these urine and blood tests in under a Fourth Amendment challenge.
In a revocation case, however, there is no “evidence” the client is trying to keep out. As a result, the Fourth Amendment, and the “good faith” exception is not even implicated. What does reading an unconstitutional advisory threatening criminal penalties the police are not authorized to enforce violate? The Due Process clause. As Judge Michelle A. Larkin wrote in her opinion: “Here, the constitutional protection at issue is the established due-process right not to be misled by the government regarding one’s legal obligations or the potential criminal penalties for failing to satisfy those obligations[.]”
So there you have it. Telling someone they will be facing criminal penalties they can’t actually face is a due process violation, and the state can no longer revoke people’s driving privileges with such a tactic. This case is published, which means it is now controlling law in Minnesota unless or until the Minnesota Supreme Court decides to reverse it. As always, stay tuned for any further developments in the rapidly changing world of Minnesota DWI law.
Matthew B. Trevor graduated summa cum laude from Mitchell Hamline School of Law in St. Paul. There, he was an Assistant Editor on Law Review and received CALI Awards for both Criminal and Constitutional Law. He was also a Mitchell Hamline Fellow; clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. DWI Attorney St. Paul MN; Minnesota DUI Lawyer; and Minnesota Driver’s License Revocation.
 Understanding the difference is important. Before these cases happened, refusing a warrantless blood or urine test brought with it criminal penalties. The refusal itself automatically led to the Commissioner of Public Safety revoking your license in a separate civil matter.