Breaking News - Submission Is Not Consent


We interrupt the consent search blog series currently in progress to bring you breaking news: Minnesota district court judges are finally finding that submission to lawful authority is not consent. Relying on the 8th Circuit’s 2004 and 2005 decisions in U.S. v. Gray and U.S. v. Sanders, at least two brave judges are resuscitating the Fourth Amendment by reminding the State that an individual’s consent to a warrantless search may always be withdrawn. Drivers reserve the right to change their minds, and “no” once again means “no.”

Don’t break out the champagne yet, though. These brave district court judges, and their refreshingly true-to-the-constitution decisions, will likely face reversal on appeal when the Court of Appeals finds consent under its interpretation of State v. Brooks. We’re still looking, but we have yet to find a single DWI test coercion case the Court of Appeals couldn’t convert to consent.

So, what is the take-away? Lawyers need to understand the critical legal distinction between submission and consent so that they can effectively counsel drivers about their constitutional rights. In State v. Hoven, the Minnesota Supreme Court noted, as did the federal court in Gray and Sanders, that an individual may withdraw consent to a warrantless search.

In the DWI context, drivers have the constitutional right to see a warrant before law enforcement obtain a blood, breath, or urine sample. According to the courts, drivers should be able to withdraw their consent to a warrantless search by expressing their intent to withdraw consent with an unequivocal act or statement (I’ll give an example of what that looks like in a minute). Once a driver withdraws his or her consent, the driver may then submit to the warrantless test law enforcement tells them they are “required by law” to take … because submitting to that test is not the same thing as consenting to it.  Without valid consent – or one of the other judicially-crafted exceptions to the constitution – the results of a warrantless test must be suppressed.

Attorneys cannot ethically or legally counsel a client to commit the crime of test refusal, but attorneys must inform clients that an unequivocal withdrawal of consent by word or action is a constitutional right. While this isn’t legal advice, something like this oughtta do it: “I withdraw my implied consent to a warrantless search and I do not freely and voluntarily consent to the warrantless test of my blood, breath, or urine. I am submitting to a chemical test only because I am required to do so by law, and I am acquiescing to a claim of lawful authority. I do not consent.”

Stay tuned for the next installment in the consent search series: The Evolution of the Consent Search Doctrine.




The History of the Consent Exception to the Fourth Amendment Warrant Requirement Constitution didn't come with built-in exceptions; courts have created them. It wasn't until 1921, in Amos v. United States, that the United States Supreme Court first recognized the possibility of a consent exception to the Fourth Amendment Warrant Requirement. It took another 25 years, in Zap v. United States, for the Court to turn the possibility into a reality. Before 1946, you couldn't waive your right to a warrant even if you wanted to; every search had to be authorized by a warrant issued by a neutral magistrate based on probable cause. The writers of our Constitution knew all-too-well the danger posed to personal liberty by unchecked, unilateral action by one branch of government. Hence, the Fourth Amendment Warrant Requirement.

Given our nation’s belief in individual freedom, it makes sense that a warrantless search is reasonable when it is conducted with the permission of the person searched. In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. When police officers ask an individual for consent to search, it reinforces the rule of law for the individual to actually consent (or refuse to consent), and for the police to act in accordance, by executing the consensual search (or getting a warrant). That's why, when the Court created the consent search exception in the 1946 Zap case, the Court relied on actual consent; an individual had to give an intentional, knowing, and voluntary waiver of his or her Fourth Amendment rights before a search would be considered consensual. Only the truly voluntary relinquishment of the right to a warrant could support the constitutionality of a warrantless search.

Actual consent – “Yes, I give you permission to search” or “No, come back with a warrant” – remained the benchmark for about 50 years. Then, in 1973, the Court issued its decision in Schneckloth v. Bustamonte. In that case, the Court developed a new approach to the consent search doctrine by shifting the criteria for consent from actual, express consent given freely and intentionally, to "consent" as determined by the court's application of a “voluntariness” test to "the totality of the circumstances."

The significance of this shift cannot be overstated; after Bustamonte, actual, express consent (or refusal to consent) was no longer determinative. Even when there was no actual, express consent, the courts began to find "consent" by asking not whether an individual consented, but rather whether a reasonable officer would have construed the individual's actions as consent. As of 1976, courts could find "consent" as a matter of law even when there was no actual, express, voluntary consent as a matter of fact.

In Bustamonte, the Court separated consent search analysis from the original characteristics that made consent searches reasonable. Instead of focusing on the individual’s actual consent to forego a constitutional protection as the basis for the doctrine, the Court emphasized the balance between law enforcement officials’ interest in conducting searches and the private citizen’s fear of coercion. This new focus on law enforcement interests moved the doctrine of the consent search exception away from an objective standard, which focused on a particular person’s actual waiver of his or her constitutional right, to a subjective standard, which assessed whether a law enforcement officer’s actions coerced the suspect into permitting a warrantless search. "Consent" was determined by the one asking for it, not the one giving it.

Law enforcement has no complaints about this shift, but for individuals, the consent search situation has only gone downhill since Bustamonte. Subsequent court decisions have further distanced the consent search exception from its original justification by shifting the focus of consent analysis entirely away from the objective, actual manifestation of an individual’s consent to the court's interpretation of the facts from the officer’s perspective in the absence of express consent. In a recent case here in Minnesota, the Court of Appeals found free and voluntary consent from a 21-year veteran of our U.S. Navy, even when the veteran told the officer who arrested him “I guess I will take your test, but I am not consenting.” This approach goes far beyond cases that have come before, and appears to be ushering in a new consent calculation: submission to a search automatically equals consent to that search.

This plays out in a dangerous way in the context of warrantless DWI searches: the Minnesota Implied Consent Advisory says "Minnesota law requires you to submit to a chemical test" and "refusal to submit is a crime." The Advisory doesn't mention the fact that if a driver refuses, no test will be performed against his will. And law enforcement is not required to clarify that a driver can (and must) submit to a warrantless search to obey the law without giving free and voluntary consent to that warrantless search.

What if the Implied Consent Advisory said "Minnesota law requires you to submit to a haircut" and "refusing to submit to a haircut is a crime"? You'd submit to the haircut to avoid the crime, even if you didn't want a haircut, right? You might even say, "I’ll submit to this haircut because it's the only way I can avoid committing a crime, but I am not consenting to this haircut.” And it logically follows that you'd refuse to submit to a haircut if you could do so without committing a crime. Well, according to Minnesota law, in that situation you freely and voluntarily consented to the haircut.

Keep checking back - up next in this six part series we'll explore the continuing evolution of the "consent search" doctrine.

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Series: Consent as an Exception to the Fourth Amendment

Photo via Bruce Bortin/FlickrNearly two years ago, the United States Supreme Court held in Missouri v. McNeely that police must obtain a search warrant in most DWI alcohol test cases because the dissipation of alcohol in the body is not enough to make an exception to the warrant requirement. Last year, in State v. Brooks, the Minnesota Supreme Court relied on a judicially-crafted exception to the warrant requirement when it held that police in Minnesota do not need to obtain a search warrant when a driver “freely and voluntarily” consents to a DWI alcohol test (and yes, every type of DWI test, whether it's by blood, breath, or urine, is most definitely a constitutionally protected search). 

At first glance, the concept of consent – you ask me for permission and I say yes or no – seems simple and straightforward. Through the looking glass of the legal system, however, consent is complicated. In the world of DWI chemical testing, consent has become one of Minnesota’s most litigated issues, both at the district court level, in the appellate courts . . . and even in federal court.

The approach of Minnesota's courts towards this issue of "consent" arises from the blurring of two concepts: consent and submission. Under current Minnesota law, submission can be legally compelled; submission to DWI testing is required by law and refusal to submit is a crime. Consent, on the other hand, must be intentional, free, and voluntary, and cannot be coerced or compelled by law. By definition, consent to search is the free and voluntary waiver of the fundamental constitutional right to be free from warrantless searches. When actual consent to a warrantless search is freely and voluntarily given to law enforcement by an individual, a warrantless search is constitutional. (Even then, though, the individual retains the right to withdraw consent at any time, as well as limit the scope of the consent.)

Consent is the critical issue because without free and voluntary consent, a search – even one the law requires you to submit to – is unconstitutional. When submission is required by law, how do we differentiate consent?

This is the introductory post of our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In our upcoming posts we'll 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

Going Federal On Implied Consent

There comes a time when it becomes clear that the persistent and systematic violation of a constitutional right is falling on deaf ears in state courts. Here in Minnesota, in case after case, the fundamental constitutional right to be protected from warrantless invasions of bodily integrity – your right to refuse to give your breath, blood, or urine when there is no search warrant -- is being flagrantly violated by police during DWI investigations, and the courts are doing nothing about it. When that time comes, as it certainly has, the only remaining option is going federal.

Today, on behalf of a client, we filed a petition for a writ of habeas corpus in federal court. We put together evidence of our state courts’ failure to uphold the Constitution, and we are asking the federal court to step in to protect our rights. Minnesota courts have left us with no other choice. Since January 2014, in the aftermath of the Minnesota Supreme Court’s decision in State v. Brooks, the Minnesota Court of Appeals has decided at least 70 appeals from district court cases dealing specifically with the issue of consent in the context of DWI. In every single one of those 70+ cases, the court concluded that the driver freely and voluntarily consented to a custodial, warrantless search. In one case, Bathen v. Comm’r of Pub. Safety, the Court of Appeals found that a driver “freely and voluntarily consented” to an in-custody, warrantless search after law enforcement sicced a police dog on him, and one officer punched him in the head while another officer threw punches below the waist.

In at least 24 cases, under an astounding array of factual scenarios, the Court of Appeals upheld the district court’s conclusion that a driver’s consent was free and voluntary. Far more alarming is the fact that in one year the Court of Appeals unanimously reversed district courts’ determinations that consent was coerced and was not free and voluntary in at least 43 cases. In 2014, district court judges found coercion almost twice as often as they found consent, and yet the Court of Appeals reversed every single district court judge who found that, under the totality of the circumstances, a driver was coerced into consenting. The situation is so dire that the Court of Appeals has taken to dismissing the lack of consent in the majority of cases by concluding that drivers are “consenting” to the execution of warrantless searches “as a matter of law.

The decision to file a petition for a writ of habeas corpus in federal court is a significant one. The Minnesota Court of Appeals’ clear endorsement of an unconstitutional law calls for significant action. The time has come to call on the federal courts to end this injustice and reinstate the Fourth Amendment protections of the Constitution in Minnesota.

NOTE: We made the decision to edit this post slightly due to the use of some . . . particularly strong language, language that threatened to undermine the civil tone we work to maintain on a daily basis. We are known for being aggressive defense attorneys, but want to ensure that we are not needlessly slinging mud, especially when it is far more effective to rely upon the merits of our arguments. To anyone who was offended by the deleted language, we apologize.


Consequences For Minnesota DWIs Continue to Climb

Minnesota's DWI Task Force - a body comprised of a broad array of prosecutors, judges, members of law enforcement agencies, other government employees, and private citizens - is set to make its recommendations to the Minnesota Legislature in 2015. As reported recently by the Star Tribune, the task force met at the end of 2014 to solidify its recommendations to the legislature for the upcoming year.

Some of the recommendations are interesting:

-Impoundment of all license plates for anyone arrested for driving while impaired. In keeping with the steadily-expanding policy of punishing drivers before, not after, they are summoned to court, the Task Force is recommending that everyone arrested for DWI have their license plates impounded immediately, at the scene of the stop. Simply being arrested for DWI, even if you ultimately test below the legal limit, will result in a permanent sticker placed across your license plate, and you will need new plates ("whiskey" plates reissued standard plates) to replace the impounded ones.

-Reducing the need for drivers on ignition interlock to pre-pay for a year of car insurance, allowing payment plans for license reinstatement fees, and removing the DWI "written test." Currently, every driver who is required to enroll on the ignition interlock program not only needs to pay the associated installation and maintenance fees, but also needs to provide proof of an "insurance certificate." The Task Force wants to see this insurance certificate as a requirement only for drivers who have a history of driving without valid insurance. There are further recommendations to allow drivers to pay the hefty license reinstatement fee of $680 in installments (a fee that is effectively a second, duplicative fine imposed by the State on drinking drivers, and is bordering on violating the double jeopardy clause of our Constitution . . .but I digress), and eliminating the unnecessary and time consuming written test that is currently required to get your license reinstated after a DWI.

-Increasing penalties for drivers who continue to drive after being revoked for an alcohol related offense. The Task Force wants to create a new, enhanced level for the crime of the "driving after revocation" for drivers who are revoked based upon a DWI offense. The recommendation carries no specifics, and appears geared towards both higher fines and potentially a mandatory minimum jail sentence.

-Reducing the legal limit for enhanced penalties from .20 to .16. Currently, a driver will face an increased revocation period for their driver's license if they submit to a test that reports a result at or above .16. However, increased jail penalties and maximum sentences are only imposed if a test is above .20. The Task Force wants to make all increased penalties occur at the .16 threshold.

The Task Force is not currently recommending that the legal limit be lowered to .05, although that idea is gaining steam nationally and it is only a matter of time before it is considered. The Task Force also refused to consider recommending that Minnesota's DWI Forfeiture Law be repealed, meaning that in the near future we can continue to expect police to seize vehicles involved in DWI offenses. Finally, it appears that the Task Force will take no position on the fact that Minnesota's DWI law will punish drivers regardless of whether they were forced to drive to save their lives - the centuries-old common law defense of "necessity" is not currently available in Minnesota, and the Task Force chose not to push to add it. This refusal to act also calls into question other aspects of our law - for example, is just having a prescription drug in your system enough to mandate that you lose your license? Failure to clarify the law on this point will continue to cause significant problems into 2015.

None of these recommendations are law, as of yet, and the issues that the Task Force avoided may still be written into law by the Legislature. We're just providing a little peek behind the curtain, and staying up to speed on any potential changes that may become law in the future.


Start the New Year With a New You: Minnesota's New And Improved Expungement Law

We first mentioned it last May: After years of effort, the Minnesota Legislature finally passed a bill making it substantially easier to for Minnesotans to finally be allowed to leave their past behind them and seal (expunge) certain records of prior criminal convictions. If you’ve ever been denied a job or housing because of an old conviction on your criminal record, this law is for you.

The process for sealing a criminal conviction, referred to as an “expungement,” can be time consuming, but with the radical new changes to Minnesota’s Expungement Law (which go into effect January 1, 2015), the legislature made it much, much easier to earn a clean slate.

This post is not designed to provide any legal advice – if you want to find out if you are eligible for an expungement of your criminal record, and want help getting it done, please call our office for a free consultation. That being said, it’s helpful to see exactly how the new law is laid out, and by providing the public with an easy-to-digest version of a fairly complicated law, we hope that more people that are now eligible for an expungement will take advantage of this opportunity as soon as possible.

One additional note: when we’re speaking about “expungements” in this post, we’re specifically talking about judges using the new power granted to them by the legislature to seal criminal convictions, hiding these convictions from background checks performed by employers or landlords. There are other types of expungements that apply to people who were never actually convicted (or never admitted any guilt in court) that are much easier to obtain, follow a simpler process - and that we'll talk about at a later date. This post is for those people who are stuck behind the 8 ball and need help erasing their criminal history.


Assuming you are eligible for an expungement, we’ll get to work on collecting the necessary information, filing the petition, and getting ready for the court hearing. But be ready to wait, because the expungement process takes time. Expect it to take a couple of weeks to pull together the information that needs to be included in the petition, and then to have the actual petition carefully crafted. Once the petition is filed, the court will not provide a hearing for at least 60 days, in order to give any victims and the government the opportunity to object to the request.

That hearing may involve your testimony, explaining to the judge why you need an expungement. It will certainly involve arguments by the attorneys, passionately explaining why you are the ideal candidate for an expungement, and why you deserve to be one of the many, many Minnesotans who are taking advantage of this new law. However, the expungement process doesn’t end with the hearing - unfortunately, there will be even more downtime after the hearing. In the best case scenario, where the judge rules immediately that you are entitled to have your record sealed, the law requires that order to be put on hold for 60 additional days, to give the government time to decide if they want to appeal the decision. If no appeal is filed, the agencies that control your criminal record will begin the process of sealing your record at the end of that 60 day period – which will be at least four months after the petition was actually filed.


Getting the expungement process moving only makes sense if there is a reasonable chance of success. Minnesota’s new law places certain restrictions on expungements, depending on the type of offense you or your loved one was convicted of, and how much time has passed since that conviction.

How long you have to wait will depend upon the severity of your conviction. In Minnesota, there are four levels of severity – a petty misdemeanor, a regular misdemeanor, a gross misdemeanor, and a felony. The level of conviction is determined entirely by your sentence; if the judge sentenced you to 90 days in jail (or put you on probation and threatened you with up to 90 days in jail if you violated the terms of your probation), you were convicted of a misdemeanor. If the judge sentenced you to anything more than a year in jail (even a year and a day) you were convicted of a felony.

The level of offense determines how long you need to be able to prove that you remained law abiding. For example, in order to expunge a misdemeanor conviction, you should wait two years after you successfully completed probation, and you cannot have been convicted of any new crime during that period. So, someone who got in a bar fight, pled guilty to misdemeanor assault, and was placed on probation for one year, would have to go three years without being convicted of a new crime before they would want to file a petition for an expungement of that conviction (one year of probation + two additional years of waiting due to the fact that the conviction was a misdemeanor = three years before filing an expungement petition).

Level of Offense

Petty Misdemeanor


Gross Misdemeanor


Sentence Imposed

0 days of incarceration

1-90 days of incarceration

91-365 days of incarceration

A year and a day (or more) of incarceration

Time to Wait For an Expungement (After You’ve Been Discharged From Probation)

2 years

2 years

4 years

5 years

These are the general timeframes – but not all convictions are treated equally. This new law does not (currently) allow a judge to expunge domestic assault convictions or sexual assault convictions, or crimes related to these types of convictions, like violating Orders for Protection or Harassment Restraining Orders. This prohibition against expunging these types of assault applies whether the offense was a gross misdemeanor, felony, or any other level of offense.

There are additional restrictions on felony convictions, because the new law only applies to a very specific list of felonies. This list of felonies is a mix of what is commonly referred to as “white collar crimes,” types of theft and fraud, convictions for controlled substance (drug) crimes, certain types of arson, and some head scratchers like “Assaulting a Police Horse.”

But, assuming someone’s conviction was not for domestic or sexual assault, and it was not a felony conviction, they only need to wait the allotted period of time and it will be time to file that expungement petition. If the conviction was for a felony, they’ll still only have to wait the allotted period of time, but will just have to make sure that their conviction made “the list” of allowable offenses. Know that this "waiting period" is not set in stone, but that waiting will provide the best possible odds of success in getting this petition granted.


When seeking to expunge a criminal conviction, we will need to convince the judge with “clear and convincing evidence” that 1) the benefits of sealing the record outweigh 2) the disadvantages to the public (and public safety in general). This is a very fact-specific argument, and typically involves painting a careful and accurate picture of exactly what problems this criminal conviction have caused (such as inability to find employment, or be certified to work in a certain field, or rent an apartment) and why the judge should take the extraordinary step of completely sealing a criminal conviction from public view.


Are you thinking about getting an expungement? Has a prior criminal conviction made it difficult to find a job? Give us a call and we’ll talk you through the process and find out if an expungement petition can help solve your problems and give you a fresh start. But before you call, try and pull together the following information:

1.     1.  A list of all your home addresses since the time of the incident you are looking to expunge;

2.      2. All the information you have from the incident, including copies of police reports, sentencing orders, written complaints – the more the better

3.      3. Copies of any previous expungement petitions you or an attorney may have filed in the past.

And THAT’S IT! (for now, at least)

Now, there is A LOT MORE that went into this new expungement law, and again, this post is not designed to provide you with any legal advice. What we’ve provided here is the broad tools to allow you to quickly decide if an expungement looks like something you’d like to explore . . . but it’s just a starting point, a quick tool to use to determine if you may be eligible. Minnesota’s Second Chance Law is going to provide a lot of people with a fantastic, first-ever opportunity to remove prior convictions, and there is no guarantee that the Legislature won’t dramatically alter this law in the future. If you want to see a conviction removed from your record, have your gun rights restored, or try and get a professional license back, 2015 will be the best time for you to create a new you.




Minnesota Supreme Court Holds Oral Arguments Today Regarding Minnesota's DWI Laws

Big things are about to happen at the Minnesota Supreme Court, and the most visible evidence is going on this morning in two cases: In State v. Larson, the Court will address whether Minnesota should adopt the "good-faith" exception to the rule that the State cannot use unconstitutionally obtained evidence against an individual in court. In State v. Lindquist, the Court will address the same issue, with the added wrinkle of determining if the McNeely decision was "retroactive" (applies to cases that came before the United States Supreme Court issued its decision). 

While many are eagerly awaiting the Minnesota Supreme Court's decision on Bernard (determining the constitutionality of making test refusal a criminal act), the Minnesota Supreme Court is quietly considering other cases as well, cases dealing with 1) Exigency; 2) this "Good Faith Exception"; and, 3) specific application of the McNeely decision in a variety of other cases.

If I was a betting man, here's what I'd predict: I expect the Court to simultaneously issue its decisions in the cases being argued today alongside the Bernard decision argued in September. That would set the stage for the Court to: 1) finally strike down the criminal refusal law as unconstitutional; 2) more carefully define what does and does not constitute "exigency" in the DWI context; and 3) adopt the good-faith exception.  

While recognizing the absurdity of the criminal test refusal law (which makes it a crime for citizens to refuse to waive their fundamental constitutional right against warrantless searches), the court will “save” pending cases by recognizing the good-faith exception. Drivers who were duped into “consenting” to DWI blood, breath or urine tests will be unable to avail themselves of the court’s recognition that police cannot obtain consent by threatening them with an unconstitutional law.  

Such a resolution would add a much needed touch of finality to the current state of confusion regarding Minnesota's DWI laws. From that point forward, the government could no longer charge drivers with the crime of test refusal (but they could still revoke their licenses and use the fact that they refused against them at trial). And in the same breath, it would clear the courts of the backlog of criminal cases building up as attorneys and judges wait for further guidance from the highest court in Minnesota.

This is not what I would like to see, this is just what I am predicting. Soon, we'll explain exactly why a "good faith exception" is anything but good, and how the best way to maintain a free society is to continue to attach real consequences to the government when someone's Constitutional rights are violated.

But today, if you have the time and the inclination, stop by the Minnesota Supreme Court and watch two oral arguments that are going to lead to some pretty groundbreaking decisions in the near future.


Good Intentions in Ferguson

You can look all you want, but you won’t find “good intentions” in the Fourth Amendment. As strange as it sounds, the Fourth Amendment has always existed as a form of civil rights that makes it harder, not easier, for law enforcement to investigate crimes. And while we can all agree that society would be safer if impaired drivers stayed off the roads, wishful thinking has never created an exception to the Constitution.

That’s not our “spin” on the Constitution - the United States Supreme Court has already pointed out the absence of “good intentions” in the Fourth Amendment. In the 2001 case of Ferguson v. City of Charleston, the Court held that social policy objectives – no matter how valid or laudable – are not a sufficient reason to discard the warrant requirement. When the primary purpose of a search is the collection of evidence for use in a criminal case, the Fourth Amendment requires a warrant. If law enforcement want to skip the all-important step of getting a warrant, and try to argue that they had “consent” to execute a warrantless search, they’d better make sure that any consent they relied upon was truly voluntary. The Court makes this clear in Ferguson, when it says: The interest in using the threat of criminal sanctions to deter drug use cannot justify a departure from the general rule that an official non-consensual search is unconstitutional.

Ferguson involved pregnant women receiving prenatal treatment at a state hospital. Staff grew concerned about the rate of cocaine use among its pregnant patients. The staff tried a medical response – referral to treatment and counseling – but the incidence of mothers and babies who tested positive for cocaine remained unchanged.

Looking for a way to coerce the women into treatment, the hospital staff approached city officials and offered to cooperate in the prosecution of mothers whose children tested positive for cocaine at birth. Together, hospital staff and local law enforcement crafted a policy to identify and prosecute cocaine-using patients. The policy was broad, almost as complicated as Minnesota’s Implied Consent laws, and was geared towards prosecutions for drug offenses and/or child neglect, depending on the stage of the patient’s pregnancy.

The problem was that no one bothered to tell the patients about the policy and no one asked for their consent. Instead, the State gathered evidence without consent or a warrant, and then used the threat of prosecution to inspire patients to heed the hospital’s treatment recommendations.

In defense of the policy, the government claimed that it needed to coerce patients into treatment – they had “good intentions” – and that their noble goal was totally separate from the law enforcement interest in prosecution.

Sound familiar? It should, because this tactic bears a striking resemblance to Minnesota’s Implied Consent law. DWI suspects are required to “consent” to a warrantless search of their blood, breath, or urine, because refusal is a crime. “If you don’t let me take your blood, I’ll charge you with a felony.” Where is the choice in that?

In Ferguson, the Court didn’t buy the government’s “good intentions” argument, and reminded everyone that even if you think you have a “special need” to perform a warrantless search, if that search is being used to gather evidence of a crime you’re either going to need a warrant or true consent to the search. Ultimate social policy goals – even beneficent goals like protecting the health of mother and child – do not trump individuals’ privacy interests. The Fourth Amendment right to be protected from nonconsensual, warrantless searches doesn’t falter in the face of social policy.

These issues stir our emotions and rouse our personal values. Impaired drivers and pregnant drug-users both put others at risk. We Americans value fairness, and that’s not fair . . . but, in the eyes of our forefathers, neither is extracting “consent” by using the threat of criminal sanction. In a free society, we rely on the law to protect everyone, and the law is clear: without voluntary consent or a warrant, searching someone’s blood, breath, or urine is not only unfair; it’s unconstitutional.

Let’s not forget, the road to hell is paved with "good intentions."

Will the Minnesota Supreme Court Avoid the Constitutionality of Refusal? An Examination of the Search Incident to Arrest Exception.

 Any time now, we expect the Minnesota Supreme Court to issue its long-awaited decision in State v. Bernard. That case will (likely) answer the question that has plagued Minnesota for years – is it constitutional to criminalize a driver’s refusal to submit to a blood, breath, or urine test?

We have previously discussed why Bernard is only “likely” to determine whether Minnesota’s DWI test refusal law is unconstitutional: the Court could avoid the question entirely by ruling that breath tests (as opposed to blood or urine tests) don’t qualify as true “searches” under the Fourth Amendment. The case law says otherwise, as does common sense, but that would be one method of postponing the ultimate fate of our DWI test refusal law. A method, but not the only method.

There is another potential side road on the path towards determining if our test refusal law is constitutional: does the “Search Incident to Arrest” Exception apply to blood, breath, and urine tests . . . which is another way of bypassing the issue altogether, and would avoid having to squarely address the legislature’s decision to punish the well-established right to say “no” to warrantless searches. As we’ve discussed previously, review of the Bernard Oral Arguments at least suggests that our state’s highest Court is looking for a new blanket exception to the warrant requirement in DWI cases. Could this be the one?

Search incident to arrest is basically a way for law enforcement to search a person (or a person’s belongings) without a warrant. This is permissible so as there is probable cause for the arrest. However, the law does not give automatic permission; there are really only two clear applications when this is allowed: (1) when it is needed for officer safety, and (2) when it is needed for the preservation of evidence that can be destroyed.

Consider these two reasons in the context of taking a person’s breath sample during a DWI arrest.

Breath does not seem to be taken from a person for officer safety, and at oral arguments the Court mostly disregarded this application. Destruction of evidence, however, was a hot topic. Justice Wilhelmina Wright at one point urged, “The body of the person has the ability to destroy [the evidence].” At first blush, the fact that people naturally sober up (destroying alcohol) would seem to provide a solid rationale for once again treating DWI tests as though they are not protected by the Constitution’s warrant requirement

But do the activities of the human liver rise to the level of actual “destruction of evidence?” When you consider it for a second, this is a pretty loose definition of the word “destroy,” a word typically used to infer some sort of extreme intentionality. The dictionary definition of “destroy” is to “put an end to something’s existence.”

In this sense, to hold that the dissipation of alcohol in one’s body is tantamount to a suspect “destroying” evidence (such as flushing drugs down a toilet) would be a feat of personification; it would give the body an intentionality it does not possess. Why? Because of a basic scientific reality: there’s actually nothing a person can do to change the rate of alcohol metabolization in their body. The only way that alcohol concentration lowers is the passage of time. Consuming coffee or water, taking a cold shower, or any other hokey remedy your college roommate told you about, all do nothing to lower one’s blood alcohol concentration. Even vomiting fails make a difference. This is crucial because, as McNeely teaches us, the rapid dissipation of alcohol in a person’s system does not create an automatic exception to the warrant requirement.

Still, at oral arguments in Bernard the Court pressed this issue with the attorneys, pointing out that search incident to arrest may be used in a less constricted ways before adding that recent cases, including the recent Riley v. California decision, may allow for further application of the exception.

Overall, the search of someone’s breath incident to a DWI arrest seems to go far beyond the purpose of the “search incident to arrest” exception to the warrant requirement . . . especially considering that exigency is precisely the problem the Court examined with the “destruction” of alcohol evidence in McNeely. It seems unlikely that the Minnesota Supreme Court will dramatically expand the scope of this particular Constitutional exception, but everyone who practices in the area of DWI defense needs to keep this possibility on their radar.

Join us later this week when we examine yet another potential side road: the “Good Faith Exception.” 

Brooks-Style Consent: Valid Forevermore? A Dissenting Opinion Suggests Otherwise.

It’s been a year and a half since Missouri v. McNeely and more than a year since State v. Brooks. In that time, the law regarding DWI’s in Minnesota has been all over the map, a roller coaster of dismissed test results and conflicting decisions. Lately, however, we’ve seen a steady stream of decisions from the Court of Appeals, all saying the same thing: everyone who drives in Minnesota is “freely and voluntarily” consenting to warrantless searches of their blood, breath and urine. From a defense standpoint, it’s both surprising and frustrating – surely, not every single driver freely and voluntarily consents to a search, and the fact that in approximately 50 recent decisions our Court of Appeals has universally concluded that the driver “consented” certainly gives the appearance that Minnesota has adopted a new (and automatic) exception to the warrant requirement in Minnesota, replacing the previous automatic exception that was so recently rejected by the United States Supreme Court in McNeely.

As prominent Minnesota attorney Joe Friedberg, who was quoted in the Star Tribune on Monday, said, “The appellate courts have shown little or no respect for the McNeely holding...they’ve adopted the philosophy that the case only applies in Missouri and to McNeely.”

Yet this week we saw a glimmer of Appellate Fourth Amendment light shining down through the cloud of warrantless stagnancy. A Minnesota Court of Appeals decision (linked here) contained a dissent from the Chief Judge himself that came out and said what Ramsay Law Firm has been saying for over a decade (*see this Star Tribune article co-written by Chuck Ramsay from January, 2006): if there is any doubt, law enforcement should get a warrant in DWI cases instead of hoping to prove “consent” after-the-fact.

In another decision, the Chief Judge also noted that law enforcement had best begin obtaining warrants, making it clear that “the message to law enforcement should be that a warrant is always required under the Fourth Amendment, except in emergency situations where exigent circumstances exist.” In that case, the Chief Judge agreed with the ultimate decision that a warrant was unnecessary, but felt compelled to send a specific message to everyone involved in DWI enforcement: start getting warrants instead of relying on exceptions in every single DWI arrest.

These two dissents stand out from the rest of the cases decided this week (and in the last year), in part because our Courts are still struggling with the idea of “consent” in DWI cases, where many drivers (especially drivers who have never been arrested before in their lives) are scared, intimidated, confused . . . and possibly impaired. For these people, spirited away to jail in handcuffs, the Minnesota Implied Consent Advisory (read by the officer that just arrested them) is incredibly confusing and inconsistent: a driver is told that they are required by Minnesota law to take a test, and then later casually told that they have a limited amount of time to make a “decision.” “Required” is, of course, a word designed to eliminate the concept of choice, while “decision” at least makes it sound like there is a real choice involved. To most, however, it sounds like a clear-cut ultimatum – not a “choice”—which is the crux of the battle that continues in Minnesota’s appellate courts. 

Perhaps today, in light of these two recent opinions, we are witnessing the first sliver of change in the Court of Appeals attitude towards Brooks-type consent. We have to ask: Is this the moment where the pendulum begins swinging back?