As the dust settles on the United States Supreme Court’s (SCOTUS) decision in Bernard v. Minnesota, what happens to DWI cases in Minnesota? The answer mainly depends on what type of test the driver took or refused to take.
SCOTUS gave Its stamp of approval on Minnesota’s DWI Refusal law as it applies to breath tests. So if you refused to submit to an evidentiary breath test, then challenging the constitutionality of that specific statute, is a lost cause. Move on and try to find another issue in your case, such as the basis for the traffic stop, whether your right to counsel was vindicated, or one of the other myriad of issues available.
If you submitted to an evidentiary breath test, then good luck challenging whether the cops needed a warrant to obtain your sample. SCOTUS basically scoffed at the idea that a request to submit to a breath test was an unreasonable search worthy of protection by the Fourth Amendment. The majority reasoned “breath testing does not implicate significant privacy concerns.”
One remaining nugget to challenge breath testing on constitutional grounds in Minnesota, is whether Minnesota’s Implied Consent Advisory (ICA) violates due process. Once an officer arrests a driver on suspicion of DWI, the officer must read the ICA to request an evidentiary test. As part of the advisory, the officer states “refusal to take a test is a crime” before asking the driver to submit to a breath, blood, or urine test. Right now, refusing to take a blood or urine test is not a crime according to Trahan and Thompson. Therefore, the current ICA is misleading drivers as to their potential criminal liability when the officer tells a driver “refusal to take a test is a crime” but does not tell them which type of test it is a crime to refuse. We will get a decision from Minnesota appellate courts on this issue in due course. In the meantime, it may be the last remaining viable constitutional issue to challenge.
The most significant decision to come out of Bernard is SCOTUS’ take on refusing to submit to a blood test in the consolidated case from North Dakota: Birchfield. By holding it is unconstitutional to charge someone with refusing to submit an evidentiary blood test, the Court effectively affirmed Trahan and wrote the Minnesota Supreme Court’s opinion for them on the issue. Therefore, if an officer arrests you for DWI and asks you to submit to a blood test, then tell them you will only do it if they get a warrant. Unless they get a warrant, or have some other valid exception to the warrant requirement, charging someone with refusing to submit to a blood test is unconstitutional.
What if a driver consents to take a blood test? The due process argument is in play mentioned supra. But, the Minnesota Supreme Court put Its mark on whether the Fourth Amendment mandates a warrant before a driver submits to an evidentiary blood or urine test in State v. Brooks. The court considered the totality of the circumstances in determining Brooks voluntarily consented to take blood and urine tests, which included a police officer telling Brooks refusal to submit to a test is a crime. Additionally, SCOTUS kicked back the consolidated case – Beylund – for North Dakota to consider whether Beylund consented to the blood test when he was told refusal to submit to a test is a crime and it really is not. This will likely result in a similar analysis to Brooks, but one can hope for a different outcome.
The constitutionality of urine testing was not before the Court in Bernard or the consolidated cases. But based on the Court’s analysis of whether the requested testing method implicates privacy concerns, it is fairly safe to speculate that refusing to submit to a urine test will be affirmed as unconstitutional by the Minnesota Supreme Court in Thompson. Urine testing reveals more medical facts about a person than simply their alcohol concentration level, which is much more similar to blood testing than breath testing.
But what about those agreeing to take a urine test? Similar to the blood testing analysis, unless the due process argument gains traction, those consenting to a urine test are likely out of luck for now.
Remember, if you are arrested for a DWI, then you have the right to consult with an attorney before deciding whether to submit to an evidentiary test. The laws are ever changing, and the maze of potential consequences can be daunting. Many attorneys provide free consultations, including us. We can be reached at 651-800-4842 or firstname.lastname@example.org.
Robert H. Ambrose is a criminal defense lawyer and DUI attorney in Minneapolis and St. Paul, Minnesota. Super Lawyers named him a Rising Star; The National Trial Lawyers Organization named him a Top 40 Under 40 Trial Lawyer; and he is a member of the National College of DUI Defense. Minneapolis DUI Lawyer; Criminal Defense Lawyer Minneapolis; and DWI lawyers St. Paul MN.