"Consent" in the Wake of State v. Brooks

Right now in Minnesota, DWI law is all over the map – the law is uncertain, with more gray areas and questions than black-and-white answers.

For example:

Is “consent” relevant in the DWI context in Minnesota? How does the Fourth Amendment apply to DWI searches in Minnesota right now?

Currently, once a driver has been arrested for DWI there are only two possible outcomes: submit to a warrantless search (blood, breath, or urine), or get charged with a crime for refusing to submit to a warrantless search. Right now, it appears this logic applies to drivers who have consumed alcohol and those who are simply driving while taking medication as prescribed. Can a driver even be said to “consent” if the officer believes that he or she can execute a search regardless of consent?

We weren’t kidding when we said there are more questions than answers – and while it is the role of our judges to provide the answers, we can certainly pinpoint the cause for all the questions: the legal fiction that our specific Implied Consent laws (which govern license revocations) and general DWI laws (which are what put drivers in jail) are somehow separate and distinct. The Minnesota legislature has determined—under the Implied Consent Law—that by driving on Minnesota roads, all drivers arrested for DWI impliedly “consent” to a warrantless search in exchange for their driving privileges. The problem is that the legislature “crossed the streams” of the DWI statute and the Implied Consent Law when it made it a crime, under the DWI statute, for a driver to refuse to submit to a warrantless search.

This handy, Catch-22 interpretation of the law arguably enables the state to use a driver’s implied consent to take a chemical test (to potentially revoke a driver’s license) simultaneously as irrevocable consent to a warrantless search for criminal evidence that can put that driver in jail. Now, our answer to these questions is straightforward - this is unconstitutional, for several reasons, starting with the fact that “consent,” by definition, is volitional—freely and voluntarily given—and can always be revoked. If consent can’t be withdrawn or revoked (without incurring criminal penalty), it’s not consent. 

It wasn't that long ago that Minnesota courts agreed with us:

“The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense[,]” Prideaux v. Minnesota, 1976, and "[a]n officer has a right to ask to search and an individual has a right to say no.” State v. George, 1997.

However, since 2013, when the United States Supreme Court clarified that the Fourth Amendment warrant requirement applies in full force to DWI tests (again, blood, breath, and urine) in the case of Missouri v. McNeely, Minnesota's DWI law has been continually and confusingly contorted in a series of contradictory decisions by our own courts – and there doesn't appear to be any end in sight.

For instance, in State v. Brooks, the Minnesota Supreme Court noted that “[t]he Minnesota Legislature has given those who drive on Minnesota roads a right to refuse the chemical test[,]” and “by reading [the driver] the implied consent advisory police made clear to him that he had a choice of whether to submit to testing.” 

But then case law crosses the legislative stream. While it seems that under the Implied Consent Law, “[i]f a person refuses to permit a test, then a test must not be given,” under the DWI statute, “[i]t is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” 

(Can a single act, such as test refusal, be both a right and a crime at the same time?)

So, what is the take-away here?

DWI suspects have the same constitutional rights as everyone else.

1. Submission to a chemical test required by law, in order to avoid committing a crime by refusing, is not consent;

2. Custodial searches for criminal evidence require a warrant; and

3. It is unconstitutional to criminalize refusal to submit to a warrantless search.

Consent just isn't relevant in a post-Brooks world. But there is hope on the horizon . . .  We expect to see some new developments in this area from our Federal Courts in the near future. Stay tuned – it’ll be a while before the law regarding DWI tests settles down, but we’ll be here to walk you through it until it does. 


This is the third post in our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In this series we discuss: 

1. The History of the Consent Exception to the Fourth Amendment Warrant Requirement

2. The Evolution of the Consent Search Doctrine 

3. Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks 

4. Consent as a Matter of Law: The Minnesota Court of Appeals and the Consent Exception to the Fourth Amendment

5. The Constitutional Implications of Minnesota’s New Standard for the Consent Exception to the Fourth Amendment

6. The Future of the Consent Search Doctrine

Don't Believe Everything You Read: Analyzing State v. Bernard

There’s a particularly . . .  odd . . . legal rumor going around, a rumor that is just plain false. The strange claim is being made that under existing precedent, the search incident to lawful arrest exception to the warrant requirement applies to chemical tests in the DWI context. For those familiar with the topic, this logic was the basis for the holding in the recent case of State v. Bernard. In that case, the Minnesota Supreme Court effectively created an entirely new exception to the traditional warrant requirement in DWI cases, repurposing the logic that applies when an officer searches for weapons to apply to the search for incriminating blood alcohol evidence.

Now, as the highest Court in Minnesota, the Minnesota Supreme Court certainly has the right to craft new exceptions to the Constitution for DWI cases (although the last time they tried this, the United States Supreme Court shot it down quite effectively). The Minnesota Supreme Court’s decision to try again, making a new exception, is not surprising.

What is surprising—the salacious rumor going around, which we’re going to nip in the bud right here—is that the Bernard decision is somehow a natural extension of preexisting law, and not a radical departure from what we’ve come to expect in terms of Constitutional protections.

The legal fact of the matter is that the Bernard majority’s holding is an unprecedented expansion of the quite clearly-defined scope of the search incident to arrest exception. Bernard is not only contrary to well-established federal law, but flies right in the face of the very case it’s trying to side-step – the Missouri v. McNeely decision from 2013. The Bernard majority basically concedes this in its opinion: “our research has not revealed a single case anywhere in the country that holds that a warrantless breath test is not permissible under the search-incident-to-a-valid-arrest exception.”

Is that the type of logic that supports a radical new definition of the Constitution? Or does it make more sense to conclude that the absence of evidence is not the same as evidence of absence?  For example, our research has not revealed a single case that holds that a warrantless colonoscopy is not permissible under the search incident to a valid arrest exception. Does that mean that it clearly follows that law enforcement can begin inspecting everyone’s colon after a lawful arrest? Is that how we make law now?

That’s what’s troubling about the current legal landscape – Bernard created a new exception, and now prosecutors are trying to cement that exception into the minds of judges before it gets overturned by the United States Supreme Court. Neither justification for the search incident to arrest exception – officer safety, or the preservation of physical, destructible evidence – is present in the DWI context. Police perform a search incident to arrest, to make sure the arrestee has no weapons or destructible evidence on his person, when they initiate the arrest and take the suspect into custody. The arrest ends when the suspect is secured in a squad car. From that point on, the suspect has no weapons, and is incapable of destroying evidence of driving while impaired. It really is that simple.

By using “traditional case analysis methods,” coupled with science, we arrive at the same legal result.

  1. Alcohol causes impairment only after it has been absorbed into the bloodstream. (Science)
  2. The natural dissipation of alcohol in the blood is not a per se exception to the warrant requirement. (McNeely)
  3.  It is impossible for an individual to destroy evidence of alcohol already absorbed into his or her bloodstream – the metabolic process is entirely out of the control of the person who is impaired. (Science)
  4. Breath tests are searches subject to the warrant requirement. (Skinner, Kyllo)
  5. Minnesota law enforcement officers receive training on how to get a search warrant. (Rule 6700.0300)
  6. Search warrants can be obtained via telephone in a matter of minutes. (Rule 36.01)
  7. There are only two justifications for the search incident to lawful arrest exception: protecting police and the public by removing weapons, and preventing the destruction of tangible, destructible evidence. (Gant)
  8. One of these two justifications must be present for the search incident to arrest exception to apply. (Gant)
  9. Police perform a search incident to arrest, to make sure a suspect has no weapons or destructible evidence on his or her person, when they take a suspect into custody. (Gant)
  10. Legally, a search incident to arrest must occur contemporaneously with the arrest. (Gant)
  11. The police must observe a DWI suspect for a minimum of 15 minutes after the arrest before conducting a breath test. (Science)
  12. Therefore, a breath test for alcohol concentration is not, legally or temporally, a search incident to arrest under clearly-established federal law.

Now, this is all a fun logic game . . . but then again, it’s also entirely unnecessary. After all, Missouri v. McNeely (the case that Bernard seeks to side step) already made it crystal clear that this “search incident to arrest” exception carries no weight in the DWI context:

Because ‘[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.

If someone tries to blind you with a wall of text, bad logic, or selective citation to authority—be especially wary of reliance on old law, and dissenting, i.e., minority, opinions—it is merely an attempt to convince you that this “search incident to arrest” exception is more than just a passing fancy. Ask them to explain the language from McNeely (quoted above) and then walk them through the 12-point “traditional case method analysis” listed above that. Trust us, they’ll be sputtering by the end.



Be Glad That Someone Is Watching The Watchers

Lawyers have an annoying habit of finding a Latin phrase for everything. Today's very apt phrase is "quis custodiet ipsos custodes" which is just a thousand-year old way of asking "who is responsible for protecting us from our protectors?" It's been a problem since we humans started appointing certain members of our species as protectors/sheriffs/peacekeepers - and is closely tied to the non-Latin phrase "power corrupts." 

We'd like to think (or at least hope) that by selecting police officers of good moral character and fiber, we won't have to worry about watching the watchers. Sadly, we've seen time and time again that this doesn't work; law enforcement agents are just as human as the rest of us, and wearing a badge doesn't improve the character of anyone who was lacking before getting their badge. Which brings us to Michael T. Slager, an officer who straight up murdered someone he was sworn to watch over.

If you’ve been in a cave or a coma for the past 24 hours, here's the video recording that demonstrates that it's time that we, the general population, finally need to step up and realize that we are responsible for watching the watchers. Without this video, a murderer might very well have walked free, and the life of an individual senselessly extinguished without any possibility of justice.

Now, we shouldn't have to belabor an obvious point, but we will, because it's expected whenever discussing a topic like law enforcement: I know better than most that the vast majority of police officers spend their working hours in harm’s way, at a low pay/high stress job, so that the rest of us don’t have to - so that we can rely on our watchers to keep us safe. Good law enforcement officers, who both know and respect the law, and who likely attained their badge after building up a strong moral character, are entitled to the benefit of the doubt in many situations that call for split-second decision making with lives on the line. Everyone has great respect for those officers.

That said, respect will never, ever equal blind faith or a failure to be skeptical. Today, I am grateful not only for the law enforcement agents who are out there every day keeping our free society as safe as it can be . . . but also for the individuals who are using advances in technology to make sure that they can step up and "watch the watchers" so that those who protect us don't abuse their power. It was a simply bystander in South Carolina that guaranteed that Michael T. Slager will face justice, and likely be held accountable for the murder of an unarmed man. That man, Walter L. Scott (pictured above), fled the scene of a traffic stop gone awry and ended up dead. 

This isn't the first time an officer has committed a crime, and it won't be the last. But with the advent of smart phones, the video is rolling everywhere, which may cause certain corrupt officers to think twice before committing a crime, similar to the theory that regular police patrols will deter corrupt citizens from committing crimes. 

We need the funds to ensure that every law enforcement agent is wearing a camera, both for the sake of gathering objective evidence . . . and just as importantly, to ensure that we are continuing to watch the watchers. For those on the fence about video recording as a valid means of ensuring day-to-day law enforcement accountability, watch the video again. Still unsure? Watch it again

And until the day comes where every officer is wearing the equivalent of a GoPro, there are always other options for private citizens to use to protect themselves, including the Oh Crap App. Sometimes there is a bystander to objectively record an incident. Sometimes the officer is the one wearing the camera.

But sometimes you need to realize that in a free society, you are ultimately responsible for protecting yourself.

Get Educated! 2015 Annual MSCJ DWI Seminar Schedule Released

Every experienced DWI defense attorney knows that continuing education is absolutely necessary if you expect to zealously defend your clients. 

The Minnesota Society of Criminal Justice is an exclusive gathering of approximately 50 Minnesota defense attorneys dedicated to strengthening the defense bar and educating the legal community of issues that affect the very foundations of our criminal justice system. Every year, the MSCJ holds the absolute, bar-none, one-of-a-kind, be-there-or-be-square, day-long seminar dedicated entirely to the defense of DWI cases in Minnesota.

Attendance should be mandatory for anyone who has ever handled a DWI case, or even for anyone who thinks they will in the future. I sincerely hope to see anyone who takes DWI defense seriously in attendance - the information you will learn at this seminar is priceless. 

Here's a copy of the enrollment form. As an added feature, attendees will get to see our own Charles Ramsay educate defense attorneys regarding scientific challenges to the DataMaster DMT breath test machine - bringing the information he's collected from across the country right into the laps of local Minnesota attorneys. 


But Mr. Ramsay is not the only presenter: here's the full list.

Doug Hazelton will present regarding recent updates both in the law and in the courts' interpretations of the law

Rick Mattox will present regarding Voir Dire (jury selection practices)

Max Keller will present regarding Opening Statements

Rebecca Rhoda Fisher will present regarding techniques for cross examining law enforcement agents on field sobriety testing.

Jeff Sheridan will address trial challenges to DataMaster DMT test results without the benefit of an expert.

As discussed above, Charles Ramsay will discuss trial challenges to DataMaster DMT test results when you do have an expert witness.

Rory Durkin will present his experiences winning a DWI Test Refusal Case.

Kevin DeVore will present his experiences in winning a DWI "physical control" case

Sam McCloud will explain how to present an effective Closing Argument

Cean Shands will end the day dealing with the issue of race and its impact on both trials and on general racial profiling issues.



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.