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In the wake of the United States Supreme Court’s decision in Bernard v. Minnesota, speculation ensued about how courts would apply the high court’s analysis. So far, two significant cases indicate the direction judicial officers are pointing us. Those cases are Hexom v. Minnesota and State v. Otto.
In Hexom, he petitioned for a writ of certiorari to the United States Supreme Court (SCOTUS) to challenge whether he voluntarily consented to a urine test after being arrested on suspicion of DWI. Within a week of Bernard being decided, SCOTUS granted Hexom’s writ; vacated the judgment against him; and remanded the case back to the Minnesota Court of Appeals. SCOTUS is instructing the Minnesota Court of Appeals to review Hexom’s case in light of Birchfield, which was consolidated with Bernard and Beylund.
The consolidated cases in Bernard did not involve urine testing, only breath and blood in DWI cases. The Court sent back down Beylund to North Dakota to evaluate whether Beylund consented under the totality of the circumstances after being told refusal to submit to a blood test is a crime, when in fact it is not a crime. This is significant to Hexom, because the Minnesota Court of Appeals already analyzed Hexom’s consent under the totality of the circumstances in its opinion last August. Hexom’s counsel zealously argued that Hexom’s consent was coerced because, in part, he was told refusing to submit to a test was a crime. If the Minnesota Supreme Court affirms Thompson and decides refusing to submit to a urine test is not a crime, then Hexom was lied to during his implied consent advisory.
In the same vein, the Minnesota Court of Appeals decided State v. Otto this past Monday. Otto submitted to a blood test at a hospital after being told refusing to submit to a blood test is a crime in a DWI case. The court evaluated Otto’s consent under the totality of the circumstances, including “the nature of the encounter, the kind of person defendant is, and what was said and how it was said.” Because refusing to submit to a blood test is not a crime according to the United States Supreme Court, the Minnesota Court of Appeals noted Minnesota’s Implied Consent Advisory is now partially inaccurate. In its reversal, the court of appeals instructed the district court to consider the partial inaccuracy of the implied consent advisory in evaluating Otto’s consent.
On remand, the Minnesota judges deciding Hexom and Otto may very well find both drivers voluntarily consented to test in light of the inaccuracy of the implied consent advisory. Or, the courts may determine the good faith exception applies. But reversals seem to trigger the question: if the higher court agreed with the decision, why didn’t they just affirm? This notion provides hope and optimism for drivers who were, and are being read, an inaccurate implied consent advisory.
Robert H. Ambrose is a criminal defense lawyer St. Paul and Minneapolis, Minnesota. Super Lawyers named him a Rising Star for 2016; The National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer; and he is a member of the National College of DUI Defense. DWI lawyer St. Paul; Criminal Defense Lawyer Minneapolis; and Minnesota DWI attorney.
 We previously blogged extensively about Bernard v. Minnesota here, including a recap of the decision here.
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