Recently, the Minnesota Court of Appeals affirmed the principle that old DWI Refusal convictions may be thrown out if a peace officer requested a blood test without a warrant and without an exception to the warrant requirement. The vast majority of cases applicable to this situation will be from before the seminal cases in 2016. That year saw Birchfield v. North Dakota at the United States Supreme Court, State v. Trahan and State v. Thompson at the Minnesota Supreme Court. The principle from those cases is that to have a lawful blood or urine test in a DWI case, a peace officer must provide a valid search warrant or have an exception to the warrant requirement while adhering to Missouri v. McNeely.

Minnesota’s DWI test-refusal statutes changed shortly thereafter to reflect these new principles. For those convicted of DWI Refusal under such scenarios, quickly sought relief from post-conviction courts to get their convictions overturned. This was a big deal for those sitting in prison, jail, or facing charges enhanced because of these prior DWI convictions. What followed was a litany of cases evaluating whether these new principles would apply retroactively. Thankfully, they do. The question became how to analyze whether a person’s case qualifies. The result is a heightened pleading standard detailed in Fagin v. State for what is popularly referred to as Birchfield/Johnson postconviction proceedings.

First, the petitioner in a postconviction proceeding must allege no search warrant was issued for the blood or urine test in a DWI case and no search warrant exception applied. Then, if the prosecution argues against those allegations, it must plead specifically the existence of the warrant or exception to the warrant requirement it is relying on to give the petitioner sufficient notice of its position. Failure to comply with these evidentiary procedures, can trigger the court of appeals to reverse and remand for further proceedings. The postconviction court’s process must align with the rule pronounced by the Minnesota Supreme Court in Fagin v. State.

The burden of proof initially falls on the petitioner – the person seeking to overturn their conviction. Proving there was no warrant is often easy enough. Proving a lack of a warrant exception can be more difficult. But, all the petitioner needs to do is allege that upon information and belief that no warrant exception applies. Then, the burden shifts to the prosecution to prove the contrary and they must provide adequate notice of doing so by a formal answer or motion, so that there are no surprises at the actual evidentiary hearing.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past five years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is an adjunct professor at both the University of Minnesota Law School and Hamline Mitchell School of Law. DWI Attorney Woodbury MN; Criminal Defense Attorney Minnesota; and DWI Lawyer Twin Cities.

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