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st. paul dui attorney

What happens to DWI cases in Minnesota while we await SCOTUS’s decision in Bernard?[1] Will judges be willing to stay all DWI cases until SCOTUS issues an opinion? Or, stay just DWI Refusal cases since that is what Bernard entails? Will judges force defense counsel to litigate the issue and force the losing party to appeal the order if they do not like it? We will address these questions among the vast possibilities currently playing out in courtrooms across the state since SCOTUS granted Bernard’s review.     

Litigating Every DWI Case

From a defense perspective, the decision to challenge every DWI Refusal case is a pretty easy one to make. The Minnesota Court of Appeals struck down Minnesota’s DWI Refusal law twice in the past three months. In Trahan, the court declared charging a driver with refusing a blood test unconstitutional; and it declared the same for refusing urine tests in Thompson. With a decision from SCOTUS on Bernard’s constitutional challenge to refusal breath tests looming, not challenging every DWI Refusal case right now is practically malpractice.

But what about litigating DWI cases where someone does not refuse to take a test? Should those be challenged? Absolutely. Once an officer arrests a driver on suspicion of DWI, the officer must read the driver the Minnesota Implied Consent Advisory (ICA),[2] if the officer wants to get an evidentiary breath, blood, or urine test from the driver to use as alcohol concentration evidence. As part of the ICA, the officer states “refusal to take a test is a crime” to the driver before asking them to submit to a test. But right now, refusing to take a blood or urine test is not a crime, and refusing to take a breath test may not be a crime. Therefore, the current ICA is misleading drivers as to their potential criminal liability.

Stay Proceedings?

Some defense attorneys are asking judges to stay proceedings in DWI cases while we wait for further guidance from SCOTUS on the constitutionality of Minnesota’s Refusal law. Some judges are granting these requests. But in some jurisdictions, judicial policy is to force the parties to litigate the issue and the losing party can appeal if they want to. In those jurisdictions it appears the court worries more about a backlog of stayed cases than it does about correctly deciding a constitutional issue currently before the United States Supreme Court.

Plead Guilty and Attempt to Withdraw the Plea Later

In some cases, prosecutors will offer a nauseating option: plead guilty to the DWI, whether refusal or not, and they will not object to a defendant’s motion to withdraw their plea down the road if SCOTUS reverses Bernard. In courtrooms across the state, prosecutors are making this offer and defendants are taking it—sometimes with the advice of counsel. People often want to resolve their case and move on with their lives, or they do not want to pay for an appeal if they lost the issue already. But if Bernard, Trahan, Thompson, McNeely, and many others never appealed a wrongful decision, where would we be?


Robert H. Ambrose has a Lead Counsel Rating in Drunk Driving Defense and is a member of the National College for DUI / DWI Defense. He also recently received a Client’s Choice Award for 2015 from Avvo. DWI Lawyer St. Paul and Minneapolis; criminal defense attorney St. Paul MN; and criminal attorney St. Paul MN.  

[1] Recently, we blogged here about the Supreme Court of the United States (SCOTUS) granting review and here about why SCOTUS granted review.

[2] Minn. Stat. 169A.51, subd. 2.

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