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Widely believed as the most reliable chemical testing method for DWI cases, blood tests are splattering the headlines recently. In Minnesota, the company that provides blood test sample kits issued a recall notice for many kits distributed after November 1, 2018. On Wednesday, the Minnesota Supreme Court narrowly decided drivers do not have a right to consult with an attorney prior to warranted blood tests in DWI cases. Three weeks ago, the United States Supreme Court determined officers do not generally need a warrant to administer a blood test to an unconscious driver.

Blood Test Recall

On June 14, 2019, the Minnesota Bureau of Criminal Apprehension (BCA) issued a statement acknowledging manufacturer of blood test vials issued a recall. The manufacturer realized the test tubes lacked the required preservatives. Each vial used for DWI blood testing is supposed to include a powder preventing coagulation and fermentation. Without that powder present, it can drastically change the contents of a blood sample as it waits to be tested, including alcohol concentration. The BCA purchased 2,000 DWI blood kits from the affected quantity. The BCA claims to have identified the possible kit numbers, which has sent lawyers scrambling to identify their cases it may affect. It also throws additional doubt into the trustworthiness of DWI testing in general.

Right to Counsel

Historically, Minnesota gave drivers the right to talk to a lawyer after an arrest for DWI and before deciding to take a breath, blood, or urine test. This past Wednesday, the Minnesota Supreme Court decided that drivers only have that right in breath test cases. By a slim margin of 4-3, Minnesota’s high court determined that when officers obtain a warrant to draw blood from a driver suspected of DWI, the driver does not have the right to consult with an attorney before deciding whether they are going to comply with the warrant. Drivers can refuse to take a blood or urine test if presented with a warrant by a cop, which will trigger a DWI Refusal charge. Just like a driver can face DWI Refusal if they do not submit to a breath test. However, in breath test cases, a driver can call an attorney before deciding whether they will take the evidentiary breath test at the police station.

The criminal and civil ramifications can be very different depending on whether someone takes a test in a DWI case. Talking to a lawyer about those consequences can be incredibly helpful for most people figuring out whether they wish to take a test. But the Minnesota Supreme Court reasoned that people do not get a chance to talk to a lawyer when presented with a warrant by law enforcement in other situations; therefore, it should be no different in DWI cases.

Unconscious Drivers

The United States Supreme Court weighed in on DWI cases last month in Mitchell v. Wisconsin. In another tight vote of 5-4, the Court determined officers do not need a warrant to get a blood sample from an unconscious driver suspected of committing DWI. Even though the Court previously ruled the natural dissipation of alcohol from a person’s bloodstream is not an exigent circumstance to exclude the warrant requirement in a DWI case in McNeely, the Court mindboggling determined this case presented exact such circumstances excusing a warrant. In her dissent, Justice Sotomayor vehemently disagreed with the majority’s interpretation of the Fourth Amendment by stating “the answer is clear: If there is time, get a warrant.”

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past four years; The National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer for the past six years. He is also a member of the National College of DUI Defense; and an adjunct professor at the University of Minnesota Law School and Mitchell Hamline School of Law. DWI Lawyer Woodbury MN; DWI Attorney Minnesota; and Washington County DWI Lawyer.

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