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.
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 If consent can’t be withdrawn or revoked (without incurring criminal penalty), it’s not consent.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).”
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:
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