seem that the fabric of Minnesota's DWI laws is slowly unraveling as new
challenges are made to the laws and how they comply with constitutional
protections. As a result, persons charged with DWI offenses in
Minnesota have a number of viable defenses at their disposal and should
ALWAYS consult with an attorney before entering any plea.
One of the major issues presently being litigated is whether
Minnesota's laws unconstitutionally coerce persons arrested to provide
breath, blood or urine samples for alcohol testing. As many
Minnesotans are aware, when a person is arrested for suspicion of drunk
driving, they are read an implied consent advisory which is a short
statement of their rights. That advisory informs the driver that they
have a right to consult a lawyer before submitting to any testing.
However, if they refuse to submit to breath, blood or urine testing, they
can be charged with a criminal offense. In fact, the criminal offense
charged, which is a refusal to test, often has more severe consequences than
being charged with a DWI. Specifically, a refusal may turn a
misdemeanor DWI into a gross misdemeanor refusal. The former carries with it
up to 90 days in jail and a $1000 fine, where the latter may be punished by
up to 1 year in jail and a $3000 fine. Moreover, the license
revocation for most first offense DWI's is generally 30 to 90 days.
For a refusal, that revocation period is one year.
This is critical because challenges to the law are based upon
the State and Federal constitutional protections to be free from
unreasonable searches and seizures. The United States Constitution’s
Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures.” U.S. Const.
amend. IV. The Minnesota constitution contains a parallel provision. Minn.
Const. art. I, § 10. Minnesota case law has consistently stated that a
search and seizure conducted without a warrant is per se unreasonable.
State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).
When you consider that a breath, blood or urine test
is, indeed, a search for inculpatory evidence, then constitutional
protections must be applied. Both federal law and State law have
historically recognized that seeking a sample of breath, blood or
urine is, in fact a search as the term is defined in constitutional law.
this was established in Skinner v. Ry. Labor Executives’ Ass’n., 489
U.S. 602 (1989). and, in Minnesota in State v. Shriner, 739
N.W.2d 432 (Minn. App. Oct. 2, 2007).
The end result is that an Officer seeking to test a driver's
blood, urine or breath to determine the presence of alcohol must either have
a warrant to search and seize that sample or have some valid exception to
the warrant requirement. State prosecutors would argue that there is a
viable exception for exigency. Exigency requires that there is some
immediate need to seize the evidence or it will be gone. In other words,
The problem with that argument is that generally, there is
plenty of time for an officer to seek and acquire a warrant after a person
is arrested for a DWI. Police have up to two hours after the driving
conduct to acquire a sample that would be admissible in court as evidence of
a DWI and their are always Judge on call for that precise purpose.
When determining whether the situation presented exigent circumstances,
Minnesota courts examine the totality of the circumstances. State v.
Lohnes, 344 N.W.2d 605, 611 (Minn. 1984).
Minnesota courts have noted that factors to consider when
determining whether exigent circumstances are present for an officer to
search include: (1) the time that has passed while the accused is
transported to the hospital, (2) the need for the officer to investigate
the scene, (3) the evanescent nature of alcohol in the blood, (4) the
availability of the accused in the hospital, and (5) the time necessary
to obtain a warrant, including a telephonic warrant. See, e.g.,
State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978); State v.
Shriner, 739 N.W.2d 432, 436 (Minn. App. 2007), review granted (Dec.
The fact that seeking a warrant is inconvenient, should
not be a basis to ignore constitutional protections. Of course,
it would be exceedingly rare for a police officer to force a driver to
provide a breath, blood or urine sample and, presently, there is no need
since the driver may be charged with (arguably) a greater offense
should they refuse to provide a sample for testing. This is whether
Minnesota's Implied Consent statute runs afoul of constitutional
A second exception to the warrant requirement is consent.
Prosecutors will argue that the when a driver is read the implied consent
advisory and consents to a breath, blood or urine test, they fall with in an
exception to the warrant requirement. This is an established exception
to the warrant requirement under State v. Hanley , 363 N.W.2d 735,
738 (Minn. 1985). However, to be valid (and thus fall within the exception),
such consent must be “freely and voluntarily” given as indicated in
State v. George , 557 N.W.2d 575, 579 (Minn. 1997). The U.S.
Supreme Court said it best in Schneckloth v. Bustamonte, 412 U.S.
218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), stating that “an
officer has a right to ask to search[,]¼an individual has a right to
say no.” Id.
So, is it really freely given consent when a police officer
tells a driver that they: (1) may choose to submit to breath, blood or urine
testing BUT, (2) if they do not, they will be charged with a crime?
The state of Minnesota has begun to review this issue and it
appears presently that the answer may be "no." In State v.
Netland, 742 N.W.2d 207, 214 (Minn. App. 2007) pet. for rev. granted
(Feb 27, 2008), the court of appeals held that “because an individual
does not have the right to say no to a chemical test, and indeed, is subject
to criminal penalties for doing so, the ‘consent’ implied by law is
insufficiently voluntary for Fourth Amendment purposes.”
Unfortunately, the court backtracked a little bit in 2008 when in State
v. Pernell, 2008 WL 123944 (Minn. App. 2008) pet. for rev. granted
(March 26, 2008), it decided that the “consent” under the Implied
Consent statute is voluntary. Nonetheless, this remains a viable
defense since the Supreme Court of Minnesota promptly accepted review both
cases. Presently oral arguments are schedule for September.