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Minnesota’s DWI Refusal law took another hit on Monday. The court of appeals determined it is unconstitutional to charge someone with refusing to submit to a urine test in a DWI case in State v. Thompson. The decision came on the heels of the court of appeals’ opinion in State v. Trahan, which ruled charging a driver with refusing to submit to a blood test in a DWI case is unconstitutional.
Judge Smith’s opinion in Thompson explained that urine testing is not intrusive as sticking a needle in someone’s arm for a blood test, but “is far more intrusive than a breath test and other searches that have been upheld under the search-incident-to-arrest exception.” He also went to great lengths in describing the intrusive nature of urine testing. He noted that a urine test “intrudes upon expectations of privacy that society has long recognized as reasonable.”
Similar to the court of appeals’ decision in Trahan, the Thompson court held that requesting a urine test from a driver in a routine DWI case without a warrant neither satisfied an exception to the warrant requirement, nor passed strict scrutiny. Once again, the court analyzed exceptions to the warrant requirement, and determined that criminalizing Thompson’s refusal to submit to a warrantless urine test violated substantive due process. To do so, the court needed to first decide that refusing to submit to an unconstitutional warrantless urine test implicates a fundamental right.
After deciding a warrantless urine test does implicate a fundamental right, the court determined the government has a compelling interest to protect the public from drunk drivers was narrowly tailored. The court followed Trahan’s reasoning and held it is undisputed the state has a compelling interest to protect public safety from impaired drivers on the road, but there are other viable options to serve that interest than to criminalize refusing to submit to a warrantless search of a urine test. Those options include offering a breath test, securing a warrant, or prosecuting the DWI without a test. The prosecution is sure to argue at the supreme court that the bulk of the options available are neither practical nor constitutionally required.
The Minnesota Supreme Court granted review of Trahan and it is almost a certainty It will do the same in Thompson. The supreme court may consolidate Thompson and Trahan and wait for a decision from the Supreme Court of the United States in Bernard before deciding the two cases.
In the meantime, DWI Refusal cases should be challenged across the board. There is also an argument to be made challenging all DWI cases where Minnesota’s Implied Consent Advisory is read, which includes stating “refusal to take a test is a crime.” Is it?
Robert H. Ambrose is a DWI / DUI and criminal defense lawyer based in Minnesota. He was named a “10 Best” DWI attorney in Minnesota for client satisfaction and is a member of the National College of DUI Defense. For a free consultation, please call us at 612-547-3199 or email at: firstname.lastname@example.org.
 We blogged about the Trahan decision here; its impact here; and the Minnesota Supreme Court granting review here.
 Citing Bernard (breath); State v. Bonner (photographs and fingerprints); Emerson (photographs, X-rays, and medical examination); and King (buccal swab of cheek for identification under reasonableness-in-the-circumstances standard).
 Quoting Skinner.
 The court evaluated search incident to arrest and exigent circumstances as potential exceptions to the warrant requirement as well as the good faith exception. Because this was a routine DWI case, no exigent circumstances existed.
 As we discussed in the wake of Trahan here.
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