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Minnesota drivers used to face serious criminal penalties for refusing a blood or urine test after being read the Minnesota Implied Consent Advisory in DWI cases. As previously discussed,[1] this is no longer the case according to both the United States Supreme Court and the Minnesota Supreme Court. So, will DWI laws adapt and change accordingly?
Before we get there, here is a quick refresher on the constitutional changes occurring in the last three years in DWI law:
First, the U.S. Supreme Court’s decision in Missouri v. McNeely[2] in 2013 determined that alcohol eventually disappears from your bloodstream – on its own – is not enough of an “exigent” circumstance (think “emergency” circumstance) to allow police officers to get around having to obtain a warrant. It is a bedrock principle of the Fourth Amendment that the police need a warrant to conduct a search of your person. If a valid exception to this warrant requirement exists, however, and a police officer has probable cause to believe you committed a DWI (often just the odor of alcohol in combination with some minor driving infraction is enough) a warrant is no longer necessary. For years, police officers relied on the fact that they needed to act quickly in drawing blood tests because alcohol doesn’t stay in your body forever. In McNeely, the United States Supreme Court said that wasn’t a good enough excuse, and the floodgates opened for further challenges to DWI enforcement.
Next, came Minnesota v. Brooks[3] in 2013, in which the Minnesota Supreme Court decided that blood or urine tests taken after the reading of the Implied Consent Advisory were still valid because the person was “consenting” to the tests despite the threat of criminal prosecution which may only be illusory. In his concurrence, Justice Stras pointed out how illogical the conclusion was that a person could possibly voluntary consent to a blood or urine test after being threatened with prosecution. Brooks ended up raising more questions than answers, and its validity today is in serious doubt.
Then, just several months ago, the consolidated case of Birchfield v. North Dakota and Bernard v. Minnesota[4] made its way to the United States Supreme Court. The Court upheld criminal prosecution for refusing to submit to a warrantless breath test in Minnesota because breath tests are not as physically intrusive as blood or urine tests and only give the police extremely limited information. But, the Court overturned a prosecution for refusing to submit to a warrantless blood test after being read a North Dakota Implied Consent Advisory. The writing was now on the wall: prosecution for refusing a warrantless blood or urine test was almost certainly unconstitutional.
Fast forward to October 12, 2016. The Minnesota Supreme Court, taking their cues from the United States Supreme Court, decided in State v. Thompson that a person can also not be prosecuted for refusing to submit to a warrantless urine test. The question still remains whether anyone can be said to “voluntary consent” to these tests if they don’t refuse and a blood or urine test is taken, but it is becoming increasingly clear that these tests will almost certainly be suppressed because the threat of an unconstitutional criminal prosecution really makes the idea of “consent” go out the window, as Justice Stras foretold.
So what happens next? Clearly the DWI laws in Minnesota will need some serious revamping after this series of court cases to still pass constitutional muster. The Council for the Criminal Law Council of the MSBA has adopted an important proposal for amending the MN DWI laws in light of these cases, which would eliminate the crime of refusal for blood and urine tests. This would solve the problem of whether blood or urine tests taken by the police after reading the Implied Consent Advisory can be used later on at trial in one fell swoop because the Advisory would no longer be improperly forcing people into “consenting” to give their blood or urine when in reality the Constitution says it is not a crime.
It is important to remember what still is a crime in regards to test refusal. Refusing a warrantless breath test after the Implied Consent Advisory is read is still a criminal offense. The adopted proposal amending the law would make this clear:
Amend M.S. 169A.51, subd. 2 (a) (2) to read as follows:
(2) that refusal to take a breath test is a crime
As of today, the “breath” language does not exist in the statute, and everyone in Minnesota arrested on suspicion of DWI who has the Implied Consent Advisory read to them is simply told that refusal to take a test is a crime, and then may be asked if they’re willing to submit to a voluntary blood or urine test. This amendment would close up this loophole and put all Minnesotans on notice what subjects them to actual criminal penalties, and what the police would just like you to hand over to them without letting you know that a warrant is constitutionally required before you do so.
Matthew B. Trevor graduated summa cum laude from William Mitchell College of Law in St. Paul, Minnesota. He was an Assistant Editor on Law Review and received CALI Awards for Criminal and Constitutional Law. He was also a William Mitchell Fellow. Mr. Trevor also clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. St. Paul Criminal Defense Lawyer; Criminal Defense Lawyers Minneapolis; and St. Paul MN DWI lawyer.
[1] We previously discussed these developments here.
[2] https://www.law.cornell.edu/supremecourt/text/11-1425.
[3] http://mn.gov/law-library-stat/archive//supct/1310/OPA111042-1023.pdf.
[4] https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf.
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