How Easy It Is To Make A DWI Arrest

Hopefully I caught your attention with yesterday's post about the lesser-known but equally serious crime of driving while taking medication as prescribed (let's abbreviate that "DWP" for driving while prescribed).

As law-abiding drivers who take prescribed medication, driving is DWP, yet the natural assumption is that the likelihood of getting arrested under suspicion of driving while impaired, DWI, is low, so the risk of getting caught for DWP is remote.

Ignorance may be bliss, but it is no excuse, especially where the law is concerned. If you DWP, DWI law applies to you. When it comes to the revocation of your driver's license, a valid prescription is irrelevant once you've been arrested under suspicion of DWI.

How likely is it that you, DWP, will be affected by DWI law?

State v. Glover is one recent example of just how easy it is to find yourself arrested under suspicion of DWI in Minnesota:

In 2013, two days after Christmas, a police officer was stopped at a stoplight on an overpass above interstate highway 94 at 10:41 p.m. While stopped, he saw an oncoming car turn right and down the ramp onto the freeway. The officer thought that “the window tint on the vehicle was too dark,” so he followed the car onto I-94, and turned on his squad car lights to initiate a traffic stop. The officer approached the car to speak with the driver. A few minutes later the officer arrested the driver on suspicion of driving while impaired (DWI).

When the driver challenged the stop in court, the district court granted her motion to suppress the evidence obtained during the stop. The court held that the stop was not reasonable, in part because at 10:41 p.m. in December in Minnesota a minor difference in window tint “would be undetectable when viewed for a few seconds across the street while a vehicle is moving[,]” and a possible “slight window tint violation is not reasonable enough for the reasonable, articulable suspicion standard” for pulling someone over.

The State decided to appeal, and the Minnesota Court of Appeals reversed the district court’s decision. According to the Court of Appeals, the officer’s hunch that “the window tint on the vehicle was too dark” was enough to justify the stop; any evidence gathered by the officer during the stop is admissible. That leaves the driver with two options: appeal the decision to the Minnesota Supreme Court, or subject herself to a DWI trial. Both options are expensive and time-consuming, and the only alternative is to plead guilty and accept a conviction for DWI and a criminal record.

If this had been you, and you had been driving legally and flawlessly, but DWP, what would you do?

Coming up next: How do recent Minnesota court decisions in the DWI context affect DWP? How can law-abiding, unimpaired drivers who take medication as prescribed protect themselves? 


Medication Contraindication: Driving in Minnesota

Medication Contraindication: Driving in Minnesota

Do you take prescription medication? Approximately 70% of Americans do.

If your medication is classified as Schedule I or Schedule IIAdderall, Ambien, Codeine, or Klonopin, for exampleevery time you get behind the wheel of a car, you are committing the crime of driving while impaired. If arrested, you will lose your driver’s license, and proving that you are taking medication as prescribed by your doctor won’t help you get it back.

For this you can thank the Minnesota Court of Appeals for its recent decision in Dornbusch v. Comm’r of Pub. Safety.

In its decision, the Dornbusch court freely acknowledged that classifying medicationsbecause of their potential for abuse—was never intended to thwart their prescribed use by drivers. 

Remember, we’re not talking about street drugs or hardcore narcotics here. It is against the law to drive in Minnesota if any amount of certain medications people take every dayRitalin, Xanax, Vicodin, to name just a few—is present in your body.

But the Dornbusch court nonetheless held that when any amount of a Schedule I or II medication is found in a chemical test—even when the driver was taking the medication as prescribeda judge’s hands are tied. If the state has revoked your driver’s license for suspected DWI, a valid prescription will do nothing to help you get your driver’s license back.

Let me guess; this is the point where you, and many readers, are thinking, “Well, it’s only a crime if I get arrested while driving, and even if I get pulled over, I won’t be arrested for DWI, so I don’t need to worry.”

Think again. Law enforcement officers need only a minor traffic infraction to justify pulling you over. Once you’ve been stopped, an officer’s hunch, your bloodshot eyes, and an inability to stand perfectly still while balancing on one leg is all it takes to arrest you for DWI.

Coming up next: a recent example from the Court of Appeals of just how easy it is to find yourself under arrest for DWI.


Minnesota Supreme Court Denies Rehearing in Bernard Case

Today, the Minnesota Supreme Court formally denied the "petition for rehearing" filed in on February 18, 2015, in the case of State v. Bernard, where the Minnesota Supreme Court decided that DWI breath tests are "searches incident to arrest" and that refusal to submit to them can therefore be criminally punished.

This is not a particularly surprising development (petitions for rehearing are routinely filed and rarely granted), but what is interesting is the extra line of opinion contained in the denial:


While members of the court disagree about the effects of these cases, the court considered them in reaching its decision.

When the order mentions "these cases" it is probably talking about the two main points raised in the petition for rehearing: the Schmerber decision and the McNeely decision. In Bernard, the Supreme Court seemed to think that it was treading new ground when it decided to call DWI breath tests "searches incident to arrest," and that in doing so it would (again) have found a way to avoid applying the warrant requirement to DWI tests. What the Court failed to even mention, much less distinguish, in the Bernard decision were quotes like these (quotes that squarely address DWI tests):

The mere fact of lawful arrest does not end our inquiry . . . Whatever the validity of [search incident to arrest] considerations in general, they have little applicability with respect to searches involving searches beyond the body's surface.

That comes from page 769 of Schmerber v. California, issued way back in 1966. Then there is this quote:

‘[s]earch warrants are ordinarily required for searches of dwellings,’ we reasoned that ‘absent an emergency, no less could be required where intrusions into the human body are concerned,’ even when the search was conducted following a lawful arrest * * * * We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.”

That quote spans a couple pages from Missouri v. McNeely, which came out in 2013. Both cases make it pretty clear that search incident to arrest just doesn't apply to DWI arrests.

But should breath tests get special treatment, compared to blood and urine tests? The United States Supreme Court has already said no, back in 1989:

Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or 'deep lung' breath for chemical analysis, implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search.

Is the Minnesota Supreme Court just being "obstinate" (those are not my words, that's from the dissent in Bernard)? It's hard to see where in Bernard the Court considered these cases - two of which clearly rule out "search incident to arrest" in DWI tests, and one that specifically points out that breath tests implicate the same concerns as blood and urine tests.

But one thing is certain - the United States Supreme Court is going to be asked to investigate this decision and determine if Schmerber + Skinner + McNeely can still add up to Bernard. If they don't, it'll be the second time this decade that the Supreme Court has stepped in and told Minnesota that we got it wrong when we tried to judicially create a new exception to the Constitution's Bill of Rights.

Must Attend Event: 2015 MSCJ Annual DWI Seminar

It's that time of year again - the Minnesota Society for Criminal Justice is holding it's 30th Annual DWI Seminar - the single most important seminar you can attend if you ever even consider handling a DWI case as a defense attorney.


Never Stop Learning: The Science of Defending DWIs in Minnesota

Ramsay Law Firm has been at the cutting edge of DWI defense in Minnesota for over a decade, and maintaining that position as top-notch DWI defense attorneys means constantly learning and developing new skills.We recently went to trial on a 0.14 breath alcohol DWI case . . . and the verdict we got for our client was largely due to our efforts to stay educated on everything scientific about DWI testing. We'll tell you the verdict at the bottom of the post, but first, take a peek at how we got there . . .

. . . Chuck spent the first part of 2015 busily boning up on his scientific know-how. He started with the comprehensive course on gas chromatography (the process used to test blood and urine samples for drugs and alcohol) put on by the folks at Axion Laboratories in Chicago, Illinois. This was a refresher course for Chuck, and he's close to becoming the first attorney in Minnesota to obtain the highly prestigious "Lawyer-Scientist" designation from the "Chemistry and the Law Division" of the American Chemical Society (ACS), a non profit, Congressionally chartered scientific society.

Shortly after passing the course and obtaining his certificate . . . .


Chuck moved on to attend the 67th Annual American Academy of Forensic Scientists Scientific Meeting. The AAFS Annual Meeting is downright scary in the amount of information presented, and Chuck took full advantage of the opportunities presented to bring himself up to speed on all the recent developments that impact the practice of DWI defense.

There is a reason why other defense attorneys call Ramsay Law Firm when they have questions regarding their DWI defense cases. And there are even better reasons why our clients can rest easier at night, knowing that we're going to stop at nothing to beat the charges against them - through legal challenges, through negotiation, through sheer willpower . . . and many times, through our ability to destroy the alleged "science" behind Minnesota's DWI breath, blood, and urine tests.

And we're happy to announce that the first thing Chuck did after returning from the AAFS Annual Scientific Meeting was obtain a Not Guilty jury verdict on all charged counts in a DWI trial, where his scientific knowledge played a huge part in his ability to convince a jury to disregard a 0.14 breath alcohol test, and send our client home a free man.

Star Tribune Interviews Attorney Dan Koewler To Discuss the State v. Bernard DWI Test Refusal Decision

In the wake of the Bernard decision (the Minnesota Supreme Court's latest decision finding Minnesota's DWI Test Refusal Law constitutional, after previous attempts to obtain review of the constitutional issue were rejected by the United States Supreme Court) Ramsay Law Firm has been deluged with requests for our reaction to the decision, and our analysis of what this decision means and how it will potentially be applied in the future.

Ramsay Law Firm's Dan Koewler discussed the case with Fox9 and WCCO Channel 4, and also responded to requests from the Star Tribune and other local print media. Here's an excerpt from the Star Tribune article: 

The exception cited by the state Supreme Court that allows police to do a warrantless breath test is legally referred to as a “search incident to a valid arrest exception.” Gildea said that the state high court could not find a single case anywhere in the country prohibiting a breath test under that exception.

Yet the ruling deals only with a breath test and makes only a passing reference to the constitutionality of a blood or urine test for a suspected drunken driver. That may open the door for a driver to demand a warrant before giving a sample, said Dan Koewler, a DWI defense lawyer who submitted a brief in support of Bernard from the Minnesota Society for Criminal Justice. “This is notable, and leaves more questions than answers,” he said.

We've got plenty more to say about the court's reasoning in Bernard, and we'll be sharing it here. Fasten your seat belts, it's gonna be bumpy ride as Minnesota's legal community adjusts to a radical new interpretation of the United States Constitution.

Attorney Dan Koewler From Ramsay Law Firm Discusses the Bernard Case on WCCO Channel 4

In the wake of the decision in State v. Bernard (finding Minnesota's DWI Test Refusal Law constitutional if law enforcement demand a breath test), Minnesota media turned to Ramsay Law Firm for our reaction and analysis of this groundbreaking decision.

Our own Dan Koewler (author of the "friend of the court" brief submitted in the case) discussed the possible ramifications of this decision on WCCO Channel 4 news.

You can view the video here.

Ramsay Law Firm's Dan Koewler Discusses DWI Test Refusal on Fox 9 News

Dan Koewler appeared on KMSP Fox 9 News this week to discuss the recent Supreme Court decision in State v. Bernard and provide his experienced analysis of the decision (you can read the decision itself here).

The article associated with the interview does a good job of laying out the basic facts of the Bernard case, as well as discussing the legal holding in the case. We'd suggest reading it.

This decision is notable (and surprising) as much for the spirited dissent as for the final decision, and will have a tremendous impact on all future DWI cases. This case marks an important shift towards a new and much looser interpretation of our Constitution's Fourth Amendment, stretching an exception to the warrant requirement originally designed to protect the safety of law enforcement to cover intrusions into the human body.

As always, expect much more litigation in the aftermath of the Bernard decision, including a high likelihood of this case (or at least the issue presented in this case) arriving on the doorstep of the United States Supreme Court in the near future. KMSP-TV


Bernard Breakdown - Part One (The Good News)

 Ahh, Bernard. Where to begin?

For those of you who haven't read the Minnesota Supreme Court's decision in State v. Bernard, here's the bottom line:

After Bernard, it appears that the Minnesota law that makes it a crime to refuse to submit to a warrantless, involuntary breath test is not unconstitutional. That's not what we were hoping for, but it's not all bad.

Let’s start with the good news.

1. No more "hypothetical warrant" nonsense.

In one short paragraph, the Supreme Court dismissed the Minnesota Court of Appeals’ attempted revival of the long-dead “hypothetical warrant doctrine." Here's what they said:

The court of appeals’ analysis is contrary to basic principles of Fourth Amendment law. … [W]e refuse to embrace the rule that the court of appeals applied in this case [the hypothetical warrant doctrine].

Very clear cut, and very refreshing.

2. Bernard applies to breath tests only.

The Bernard majority limited its holding to breath tests, so when it comes to blood and urine tests, it certainly appears that the warrant requirement applies in full force. Again, here's what the Court had to say about blood and urine tests:

[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.

3. The two-justice dissent eloquently laid out a road map for reversing Bernard.

As the dissent points out, state court justices cannot cover their ears, shut their eyes, and “la, la, la…I can’t hear you” their way out of their duty to follow decisions of the Supreme Court of the United States on constitutional law. In Missouri v. McNeely, the U.S. Supreme Court definitively ruled that the potential loss of evidence due to dissipation of alcohol in the blood is not enough to justify an exception to the warrant requirement. The Bernard majority tried to get around McNeely by swapping one per se warrant exception for another one . . . and the dissent squarely called them out on it. Last time the Minnesota Supreme Court tried to circumvent the Constitution with a DWI exception, it only took the U.S. Supreme Court four years to shoot it down. How long will this new attempt last? It's hard to say . . . but let's look a little more closely at the dissent.

Dissent: Nice try with the search incident to arrest exception.

In general, the search incident to arrest exception allows the police to search a person and the area within the person’s reach for two reasons: to protect the police and preserve evidence. These two reasons have been the only justification for the exception since the judiciary created it.

The Bernard majority asserted that because the search incident to arrest exception allows police to search “a person,” extracting breath against a suspect’s will is no different from a pat-down for weapons or confiscation of contraband from a jacket pocket. Where the majority trips over itself is in its attempt to connect its definition of a breath test as a search of a person with either of the justifications--protecting police and preventing the destruction of evidence--that make the search incident to arrest exception reasonable.

Halitosis aside, a suspect’s breath presents no danger to the police, and there is nothing a suspect can do to destroy evidence of alcohol in the breath. But above all, nobody can forget that there is that binding federal precedent on this precise issue: Missouri v. McNeely determined that the natural dissipation of alcohol in the body is not enough to justify a categorical exception to a fundamental constitutional right. It was almost as if the U.S. Supreme Court envisioned Minnesota trying to create a new, flawed exception to the warrant requirement and tried to stop them before they got that far. If that was the case, they failed, in part because . . .

Dissent: The legislature can't criminalize the exercise of constitutional rights.

Finally, the Minnesota statute that criminalizes refusal to submit to testing does so regardless of the type of test refused. Therefore, with respect to blood and urine tests, Bernard is irrelevant. The majority itself admits (without explicitly stating it) that blood and urine tests still require a search warrant to pass constitutional muster, and suspects have the right to refuse any warrantless search the police need a warrant to legally conduct. Minnesota law criminalizes the exercise of that right. That is about as unconstitutional as it gets.

These are our first impressions of the Bernard decision. We'll go into greater depth in another blog post, fully dissecting the decision and its implications for the future (that post will get very legal-ly and wordy, so be warned - you'll want to bring your reading glasses). What we can say for certain right now is that it is highly unlikely that Bernard will be the last word on the constitutionality of Minnesota's test refusal law.

Stay tuned. We’re just getting started.


Bernard Opinion Released Today

Here it is, at last. The opinion we've all been waiting for: State v. Bernard.

According to our Minnesota Supreme Court:

1. Because a warrantless search of appellant’s breath would have been constitutional as a search incident to a valid arrest, charging appellant with violating Minn. Stat. § 169A.20, subd. 2 (2014), for refusing to take a breathalyzer in this circumstance does not implicate a fundamental right.

2. Because Minn. Stat. § 169A.20, subd. 2, is a reasonable means to a permissive object, it does not violate appellant’s right to due process under the United States or Minnesota Constitutions.

The Court of Appeals decision is affirmed.

Read the full opinion here.

Our legal analysis of the opinion is in the works (we've got some opinions of our own to share as well).

Check back later today for our complete Bernard breakdown, including what today's decision means for drivers and attorneys, including those with cases currently pending in Minnesota courts.