Nevada Supreme Court Holds State's Implied Consent Statute Unconstitutional

Another state in our union has joined the bandwagon of those requiring warrants in DWI cases.

In a unanimous decision, the Nevada Supreme Court held that, in light of Missouri v. McNeely, there was no basis for warrantless searches of drivers’ blood, as allowed per Nevada's now-unconstitutional statute.

Interestingly, a spokesperson for a Nevada Police Department stated that it won’t affect the state’s day-to-day operations! How is this possible?

Well, unlike Minnesota, Nevada changed its policies shortly after McNeely, and started obtaining warrants.   

Also unlike Minnesota, as a Nevada attorney explained, this decision means a couple important changes in the law: first, now police are going to have to go get a warrant or get true knowing and voluntary consent (as is not fully clarified in Minnesota DWI law), and second, a person can say, “no, I’m not taking your test” (something that cannot be said in our state without being charged with refusal).  

This decision is more evidence of a trend in our county to require warrants in DWI cases, rather than relying on an exception to the warrant requirement, such as "consent," as is being done in Minnesota.

Will our state jump on board soon? We're doing our best to expedite this possibility. 

Get Rid of That DWI B-Card License Restriction!

"ANY USE OF ALCOHOL OR DRUGS INVALIDATES LICENSE"

It’s embarrassing, it can be awkward . . . and it is also avoidable. I’m talking about the shame that is felt by anyone who displays their Minnesota driver’s license and has no choice but to cringe at that awful language, prominently displayed on their card.

Well, there used to be no choice. Once the legislature put that language on your license, it was there to stay. However, thanks to a 2011 change in the law, drivers can now have that embarrassing restriction removed from their license, as long as they meet certain requirements.

Drivers must have:

1)      Abstained from alcohol for the previous ten years;

2)      Have had no use or possession of controlled substance without a prescription within the past ten years; and

3)      Have had no DWI related incidents within the past ten years.

The Department of Public Safety conducts a records check to verify you meet the requirements. Check out the details in subdivision 3 of Minnesota Statute section 171.09.

Now obviously, you’ve got no shot at having the restriction removed if you’ve had a DWI or drug issue in the past 10 years, but if you feel you meet the requirements, download the form and fax it to the Department of Public Safety at (651) 797-1298.

While violations of a B-Card/Restricted license can be beaten, don’t take the chance. Have the restriction removed immediately.

 

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Does Our Breath Deserve 4th Amendment Protection?

In this post, we focus on whether breath testing—as opposed to blood or urine testing—is (or should be) protected by the Fourth Amendment. Why would there be a difference and what are the implications?

Towards the end of  the oral arguments in State v. Bernard, Justice David Stras asked Bernard’s attorney, “I know blood can be used to obtain DNA . . . but can breath be used to tell more about a person than just their blood-intoxication level?” The Court also asked questions along the line of whether breath is “personal property.”

Because the question went unanswered, and because the Court seems to be intrigued by this issue as a potential way not to rule on the criminalization of refusal itself, we take it on today. Spoiler Alert: you can learn a ton about someone by their breath, not just whether they’ve recently consumed alcohol (or had onions or garlic for lunch).

While it seems like breath is a harmless way to test someone’s alcohol concentration, breath has been has associated with individual health for centuries. Apparently, the first person to recognize this phenomenon was the namesake of the Hippocratic oath himself: Hippocrates (460 B.C. to 377 B.C.). That’s right, the father of medicine believed that bad breath was a symptom of disease. And, as it turns out, a couple thousand years later, we now know this to be true. Let’s skip ahead to today.

According to John Hopkins University, they can currently use breath testing to diagnose: lactose intolerance, inflammation-causing bacteria, fructose intolerance, and bacterial overgrowth syndrome (source here). Other applications have allowed doctors to determine the effectiveness of asthma treatment. Cancer diagnosis, in one test, was found to be 90% accurate!

How is this possible? The answer lies in the same reason that we have a strong privacy interest in our breath: each person's breath makes up a unique "blue print." This blue print comes from the fact that breath can contain from 4,000 to 6,000 different compounds, and the ratios and numbers of those compounds reveal an awful lot about a person’s health, habits, and diet. 

This scientific reality is especially relevant because the government’s breath testing equipment is intended to measure a certain type of air:  deep-lung or “alveolar” air, which is far more likely to contain “blue print”-like information.

So, the short answer to the question “can breath be used to tell more about a person than just their blood-intoxication level?” is not only “yes,” but, further, “yes, and breath testing tells us more and more about a person, for good and potentially harmful purposes, every year.”

In sum, while it may feel like breath is “non-invasive,” the information it contains is certainly invasive, and thus certainly worthy of constitutional protection.

*Unsolicited advice: Do chew gum if you eat onions or garlic for lunch, folks. 

Minnesota Supreme Court Hears Bernard Oral Arguments

 

Yesterday, in State v. Bernard the Minnesota Supreme Court was presented with a fundamental question  that has been brewing in Minnesota: is it constitutional to criminally punish one's refusal to waive their Fourth Amendment rights against a warrantless search of their breath? (*Video available here). 

Bernard’s (and our) answer to this is simple: “no.” 

 The State, on the other hand, gave several reasons as to why the implied consent scheme must stay intact, including its current criminalization of refusing to submit to a presumptively illegal search. These largely consisted of policy-based reasons and statistics about the number of DWI cases in Minnesota. At one point, Justice Alan Page remarked, “This isn’t about policy; this is about the Fourth Amendment.” We couldn’t agree more.

But, this did not affect the Court ‘s focus on the possibility of bypassing the warrant requirement in refusal cases, which meant exploring several exceptions that might sidestep a suspect's Fourth Amendment protections. Here’s the logic: if there is an exception allowing a warrantless search, does the defendant even have grounds to refuse?

Strangely, though, as Bernard's attorney, Mr. Sheridan pointed out, this situation might constitute charges for something like Obstruction of Justice, not refusal to test. Still, the Court pressed both sides as to whether the right to tell law enforcement “get a warrant” even applies in a DWI breath testing setting.

Of the few, well-delineated exceptions to the warrant requirement, the Court spent considerable time on whether "search incident to arrest" would preempt the refusal issue with the logic just described. The Court also probed as to whether an Administrative search where suspects are given a breath test prior to entering the jail would be an exception to the warrant requirement for, presumably, the same reason. The Court also inquired whether there is a "consent" exception from Implied Consent scheme itself (which not only has been declared a "misnomer" by the Minnesota Supreme Court itself, but also would be entirely contrary to the thrust of Brooks).

Overall, the Court was biting around the edges, looking for aspects of DWI searches that elude the real jugular of Bernard: is it legal to criminalize one’s retention of their Fourth Amendment right?

Beyond criminalization and into the realm of policy and practicality, Justice David Stras asked about the potential for increasing civil penalties as an alternative to the criminalization of refusal as a means to prevent impaired driving. Other Justices also seemed concentrated on the practicality of getting warrants in DWI cases, pointing out that judges may be woken up in the middle of the night. Justice Wilhelmina Wright (who herself is a former district court judge) added that this was “part of the job.”

While we agree with Justice Page that these policy considerations are absolutely secondary to the protections of our constitution, at some point Minnesota needs to ask itself an important question: How much legislative erosion of a suspect’s rights will we tolerate in the name of convenience? 

Mr. Sheridan, in a trenchant closing, reminded all of us that when the constitution was written, a law enforcement agent would have to ride a horse for days just to get a warrant, and then ride that horse for days to get back with it in order to execute it. Given the history and precedent of the amendment, it cannot sincerely be urged that the Fourth Amendment was written for law enforcement’s convenience.

And, as Mr. Sheridan appropriately quipped, in today’s world “there will be an app for that.”

The Court's decision is expected in the coming months. 

Check back in the coming weeks where we will explore other issues brought up in Bernard, such as the threshold issue of whether a suspect has a legitimate, Fourth Amendment-worthy expectation of privacy in their breath (as opposed to urine or blood). 

Texas Finds Per Se DWI Search Statute Unconstitutional

If we told you Texans were smarter than Minnesotans, you would laugh all the way to the Alamo.

That is, perhaps, unless you happened to stumble upon the recent Texas Supreme Court Decision of Aviles v. The State of Texas. In the wake of last year’s Missouri v. McNeely decision, the various States have all been given their own opportunity to interpret exactly how to protect the constitutional rights of drivers suspected of being impaired–and Texas decided to respect the rights of those drivers, rather than to water them down.

In Aviles v. The State of Texas, the Texas Supreme Court held the state’s warrantless search of Aviles’s blood to be without an exception, and therefore, unconstitutional. The procedural background of the case parallels Brooks in that Aviles was remanded from the U.S. Supreme Court be decided in light of McNeely.

The facts of Aviles are pretty straightforward: after Aviles was arrested for DWI, the officer brought up his laptop and discovered Aviles had two prior DWI’s. Bingo! The officer no longer needed a warrant because of a Texas statute permitting a police officer “to take a blood specimen from DWI suspect without a warrant if the officer has credible information that the suspect has been previously convicted on at least two prior occasions of DWI.”

Before forcing a blood draw, however, the officer asked Aviles if he would voluntarily submit to a breath or blood test. Interesting question because two aspects of it further distinguishes Texas from Minnesota: (1) there was no urine test offered because they do not withstand scientific scrutiny to be allowed in court; and (2) the officer, attempting to elicit valid consent, used the word “voluntary” because it must be free and voluntary to be legal consent—a question never asked in Minnesota DWI cases.

But, Aviles declined the warrantless search (yet another distinguishing aspect: he wasn't automatically charged with a crime). Herein lies the crucial moment: there is a failed attempt to elicit consent for a warrantless search that does not seem to have an exception. Does the officer have to get a warrant?

The officer took a test against Aviles’s will, relying on the Texas Statute for the “two prior convictions” exception. But does McNeely leave room for such a per se exception? The Texas Supreme Court said “no.” The court instead held that the state must take into account the totality of the circumstances present in each case, specifically noting that “it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances.”

Texas’s conclusion is the polar opposite of the one reached by our own Court of Appeals in Bernard (a case which is currently being reviewed by our own Minnesota Supreme Court). Let’s hope that Minnesota follows the lead of Texas, and everyone can start chanting “Don’t Mess With the Constitution.”

Minnesota Supreme Court Sets Oral Arguments On Bernard Case

The Minnesota Supreme Court just scheduled oral arguments in the case of State v. Bernard, where the high court will determine if Minnesota's attempt to make DWI test refusal a crime is (or is not) constitutional. Argument will be on September 4, 2014, at roughly 10:00 a.m., in Courtroom 300 at the Minnesota Judicial Center. We'll be there - we wrote the amicus curiae brief in support of Mr. Bernard - but we won't be arguing the case. That will be in the capable hands of Jeff Sheridan.

Whether the State can make it a crime to refuse to submit to a blood, breath, or urine test has been an open question since last April, when the United States Supreme Court reinforced the fact that these types of tests require warrants. Shortly thereafter, Minnesota judges began dismissing test refusal cases, finding the whole scheme illegal.

Now the Minnesota Supreme Court will decide whether or not the act of refusing to submit to a warrantless search can be considered a crime, or whether the constitution does not permit that to be an option. The Minnesota Supreme Court typically releases a video recording of oral arguments, so if you can't make it there in person on September 4, you'll still be able to view the arguments online. And, of course, we'll post a blog as soon as we can after arguments have concluded, giving you our take on what happened.

 

"Consent to Search" To Breath Test Case Granted Review in the Wake of Brooks

 

Six months ago the Minnesota Supreme Court issued its decision in State v. Brooks where it instructed every Minnesota court to analyze the “totality of the circumstances” surrounding each and every DWI arrest to determine if a given driver freely consented to a blood, breath, or urine test . . . or if they were coerced into taking that test by the words and actions of law enforcement.Minnesota’s judges began weighing the facts of every DWI arrest, and concluded that drivers were being coerced into submitting to testing, not freely and voluntarily submitting, and as a result these judges threw the test results out of court. Shortly thereafter, the Minnesota Court of Appeals stepped in, and began placing its own interpretation on what it means to “consent” to a DWI test.

Now, six months after Brooks, the Minnesota Supreme Court has granted review in another DWI appeal, giving themselves the opportunity to clarify exactly what the standard for consent is in Minnesota.

The case under review is State v. Lindquist, and it addresses two issues. The first is whether government attorneys can rely upon a “Good Faith Exception” to the warrant requirement (which was precisely the position advocated by Justice Stras in his concurring opinion in Brooks) when it comes to determining whether a DWI suspect consented to a blood, breath, or urine test.

To put it another way, if the arresting officer honestly thought that the law permitted him to tell a handcuffed, detained driver that he was required by law to submit to testing, should the government be able punish that driver even if a court later determines that he was coerced into the act of testing? It’s a question that the Court of Appeals refused to answer, believing that such a radical change to how Minnesota has traditionally upheld the Constitution can only be handled by the highest court in Minnesota – the Minnesota Supreme Court.

The other issue presented in Lindquist is the (relatively) straightforward question of whether or not this particular driver consented to a DWI test, or whether he was coerced. This case presents different facts than the unique situation the court faced in Brooks, and as the facts in Lindquist are far more . . . typical . . . than the facts in Brooks (a serial felony offender who was extremely flippant and had an attorney in all of his cases) review of the Lindquist case will likely bring a lot more clarity and guidance as to when a driver’s “consent” is actually valid.

One thing is for certain: the Minnesota Supreme Court’s rapid decision to review another DWI consent case assures us the “consent/coercion” fight is alive and well, and will be for the foreseeable future. But there are also questions: will Minnesota soon have a “good faith exception” that could put a serious damper on defense attorney’s ability to uphold their client’s constitutional rights? Will the Court tighten down on situations where drivers can be considered to have been coerced (the Court of Appeals approach) or will the Court loosen the reigns and allow district court judges – who are in the best position to weigh evidence and testimony – to look at each case individually, and truly decide each case under the case-specific “totality of the circumstances?” We’ve got some thoughts, and we’ll be sharing them soon . . . stay tuned.

 

Four DWI Cases Granted Review by Minnesota Supreme Court

In less than six months after State v. Brooks, the Minnesota Supreme Court has granted petition for review in FOUR unpublished DWI cases to be decided in light of Brooks and McNeely.

The first three cases are Isaacson, Moen, and Manska, which were accepted for review by the Minnesota Supreme Court, but stayed pending the Court’s pending decision in Bernard, because all three of these cases directly challenge the constitutionality of Minnesota’s refusal law. The results will no doubt be dramatic for refusal cases, but also for cases involving Minnesota’s Implied Consent Advisory itself—which is nearly every DWI in the state of Minnesota.

In the fourth case, State v. Lindquist, the Minnesota Supreme Court granted review for both the Defendant’s appeal and on the State’s cross-appeal. The dual grounds for accepting this case may be telling, especially because the State’s cross-appeal asks that the Supreme Court adopt a “Good Faith Exception” to the warrant requirement—the route advocated by Justice Stras in his concurring opinion in Brooks.

Check back here later this week where we will discuss the possible impact of these cases—both in the present and in the future. With four Brooks-related cases at the Minnesota Supreme Court after just six months, expect big changes in Minnesota’s DWI laws in the near future.   

Dan Koewler Selected to the Rising Star List By Super Lawyers Magazine

Ramsay Law Firm is proud to announce that Dan Koewler was recently selected to the 2014 Minnesota "Rising Star" list maintained by Super Lawyers. Each year, no more than 2.5% of the lawyers in the State of Minnesota are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters Business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, visit SuperLawyers.com

 

 

Supreme Court Upholds Integrity of the Warrant Requirement

Today, the Supreme Court of the United States (SCOTUS) issued its long-awaited decision regarding the warrantless search of cell phones by law enforcement. In the decision of Riley v. California, an effectively unanimous Court concluded that there is no good reason to create yet another exception to the already exception-ridden Fourth Amendment, and held that in the typical case law enforcement must obtain a warrant before searching an arrested suspect's cell phone.

This case presented SCOTUS with an "opportunity" to further water down the Fourth Amendment, in the face of the claims by prosecutors that cell phones present unique obstacles and need to be viewed differently than other types of searches. SCOTUS shot that argument down, just as they shot the same argument down in Missouri v. McNeely, declining this opportunity to erode the Fourth Amendment's protections.

Specifically, this case dealt with one particular exception to the warrant requirement - "search incident to arrest." In refusing to extend the scope of that exception to warrantless cell phone searches, SCOTUS made it just as clear that we will not see this exception extending to warrantless DWI searches either (an argument that is still raised by prosecutors in Minnesota to this day).

This case is interesting, and worth a read, as it explores the privacy issues that arise from a population that stores a great deal of private information "in the cloud," and accessible from a variety of locations, instead of the more traditional and antiquated methods of storing files in a desk drawer or file cabinet.

The opinion is full of well-written insights into our nation's historical respect for liberty, and I'm not going to cite to all of them. But we'll leave you with this thought, taken from the Riley opinion: "Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is 'an important working part of our machinery of government,' not merely 'an inconvenience to be somehow 'weighed' against the claims of police efficiency.'"