“[I]t was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us. . .”
In the wake of State v. Trahan, a tale of two thoughts are emerging. The epoch of belief is the decision nullifies Minnesota’s Implied Consent law and every DWI in its way. The epoch of incredulity rebukes the decision by the court of appeals and scoffs “just wait until the supreme court reverses it.” Reality may lie somewhere in between.
Even though Trahan narrowly focuses on refusing a blood test, Minnesota’s Implied Consent Advisory (ICA) does not currently distinguish the type of test when it states “refusal to take a test is a crime.” Will the legislature respond and amend the ICA’s currently false statement to “refusal to take a breath test is a crime”? Or, do they wait for the supreme court’s inevitable decision in Trahan first? What happens in the meantime?
The result may include substantially more breath test requests in alcohol-related DWIs and warrant requests for blood tests. The wake of McNeely in 2013 already prepared many players in the criminal justice system for warrant applications in DWI cases with many jurisdictions changing its procedures after that decision.
For cases involving driving under the influence of drugs, the only current method of testing is blood and urine. Absent exigent circumstances, will substantially more warrant requests occur in controlled substance cases? Or, will more urine tests be requested with the hope refusing to submit to a urine test is upheld as constitutional? To pass constitutional muster, the safest bet is to secure a warrant.
For now, we know: (1) refusing to submit to a breath test is a crime under Bernard; (2) refusing to submit to a blood test is not a crime according to Trahan; and (3) it may be a crime to refuse to submit to a urine test.
Therefore, all DWI refusal cases involving requests for blood and urine should be challenged. Not doing so is practically malpractice. Even though Trahan focused its holding on refusing to submit to a blood test, there is still an argument to be made that Minnesota’s Implied Consent Law is now unconstitutional and every DWI test, or refusal, case could be challenged on those grounds.
The thought of such widespread challenges sparks the season of darkness for some and the season of light for others.
Robert H. Ambrose is a DWI and criminal defense attorney in Minnesota. He fights to protect his clients’ constitutional rights across the state of Minnesota. For a free consultation, please contact our office at 612-547-3199 or email at: firstname.lastname@example.org.
 Charles Dickens: A Tale of Two Cities 3 (1859).