Minnesota DWI Defense Blog : Roseville DUI Defense Lawyer & Attorney : Ramsay Law Firm : Minneapolis, St. Paul, Minnesota

In the wake of Missouri v. McNeely, prosecutors, defense attorneys, and judges are all being forced to take a very careful look at the Fourth Amendment, and the new life that the U.S. Supreme Court recently breathed into the constitutionality of DWI cases.

We recognized immediately how far reaching the impact of the McNeely case would be, particularly in Minnesota, and have been continually surprised by the amount of prosecutors (and even defense attorneys) who don't seem to understand how the Fourth Amendment works.

To try and simplify things, we've created a handy flow chart as a teaching tool. Flow charts are a time-honored method used by law students around the country who are trying to understand even the simplest legal concepts. They lay out a simple roadmap to follow and can help "visual learners" grasp concepts that aren't always easy to pick up from just reading dense case law.

Obviously, this chart simplifies things to a degree (a surprisingly small degree) and is more of a "cheat sheet" for those with knowledge of the law, best used to remind them of just how fundamentally basic it is to apply the Fourth Amendment to a DWI search. We'll discuss each step of the process in upcoming blogs.

But without further ado, here's the chart (click this link for the simplified version). This chart should make it easier to see exactly how much of an impact the McNeely decision has in Minnesota, and how difficult it will be for prosecutors to introduce any test results in pending and future DWI cases. Feel free to print it out!

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Last week a man was arrested by Woodbury, Minnesota police on suspicion of driving while impaired (DWI). Once at the Washington County jail, the officer asked the man to provide a urine sample. The man urinated in a urine collection bottle that contained a white preservative called sodium fluoride. Instead of handing it to the officer, he drank his own urine. All of it.

Now in Minnesota it is a crime to refuse a DWI test. The crime is more severe than taking and failing the test in most circumstances. According to the local newspaper which first broke the story, the driver will be charged with that crime. While this guy will likely be fodder for late night comedians around the world, he shouldn't plead guilty to the crime to refusing to submit to a DWI test.

We believe the statute making it a crime to refuse a DWI test is unconstitutional, and here’s why: Blood, breath and urine tests are searches, which invoke the fourth amendment. Warrantless searches – like this one presumably was – are generally unconstitutional and the results of those searches can’t be used by the government, unless a person gives their consent to a search (test). If the test was consensual, the government doesn’t need to worry about getting a warrant, and the results are now admissible in court. The huge elephant in the room is the fact that Minnesota's test refusal law makes it a crime for a citizen to refuse to waive his constitutional right to say “no thank you, get a warrant” whenever the police attempt to conduct a warrantless search.

We've challenged Minnesota's DWI test refusal law for years. We were successful in a test refusal case at the Minnesota Court of Appeals in 2007, but the Minnesota Supreme Court reversed that case in a 4-3 decision two years later. That reversal was where the Minnesota Supreme Court crafted their "single-factor-exigency" doctrine, which effectively said, “yes, blood/breath/urine tests are indeed searches, but the Fourth Amendment will never apply to them so law enforcement doesn’t need to even think about getting a warrant.”

Fortunately, the United State Supreme Court agreed with the three dissenting judges in Netland and struck down single factor exigency last month in Missouri v. McNeely. Although the U.S. Supreme Court didn't expressly overrule the Netland case, by invalidating single factor exigency and requiring search warrants in DWI cases, it cuts the legs out from the majority's opinion in Netland and essentially overturns the decision.

No Minnesota court has ruled on the constitutionality of Minnesota’s test refusal law since McNeely, but we expect our appellate courts to eventually find the law unconstitutional. Until then, pleading guilty to DWI test refusal doesn’t make sense-- even for those who chose to exercise their constitutional rights by . . . drinking their own urine.

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Today, as reported in the Star Tribune, the National Traffic Safety Board (NTSB) made the entirely expected announcement that they are recommending the legal limit be reduced from .08 (where it is now) to .05.

This is in keeping with recent trends, which has seen states lowering the legal limit from .10, to .08, and now likely .05. While the intended goal of such a law would be to reduce drunk drivers by making many more citizens criminally liable for driving with alcohol in their system, a new limit of .05 poses many challenges to both your average driver and our courts.

As one example, with a .05 limit there will need to be a great deal of additional scrutiny focused on the various test methods used against drivers - blood tests, breath tests, and urine tests. These tests will have to be a great deal more accurate and precise to distinguish between drivers who are .049 and .05. Additionally, tests that can dramatically over-estimate alcohol concentration (like urine tests) would have even less of a place as a law enforcement tool than they do now.

But the biggest question may be "why .05?" Currently, it is still legal to drink and drive in Minnesota; what is criminal is being impaired, or being over .08. With a .05 limit, legislatures will still be telling drivers "it is legal to drink and drive" but the threshold for criminality will be so low so as to make it virtually impossible for someone to know if they really are over the legal limit. At that point, it likely makes the most sense to simply change the law to "not a drop" and thereby put everyone on notice that any drinking coupled with any driving will be a criminal act. This is already the case for drivers under the age of 21 - any presence of alcohol while driving results in criminal charges.

That type of law - not a drop - will undoubtedly come down the pipe in the future . . . but not anytime soon. In the meantime, the legal limit will continue to drop in small increments, tripping up thousands of drivers annually while our legislatures keep drawing finer and finer lines between the realm of "legally sober" and "criminally drunk."

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Minnesota Society for Criminal Justice

2013 Annual DWI Defense CLE – June 14, 2013

Recognized as the top DWI CLE in Minnesota

Featuring Prominent Local and Nationally Recognized DWI Attorneys

*** Recently Added *** Panel Discussion on Missouri v. McNeely

Every Minnesota DWI attorney should attend this seminar! Attendees will receive McNeely v. Missouri motions, memoranda and other documents. All materials will be provided on CD.

8:30 am                        Registration and Welcome

9:00-9:45 am                 View From The Appellate Bench:

The Honorable R.A. (Jim) Randall

9:45-10:30 am               Legislative and Case Law Update:

Douglas Hazelton

10:30-10:45 am            Break

10:45 am                      Enhancing DWI Penalties with Prior Implied Consent Revocations:

Dave Risk

11:15 am                      Prescription Drug DWIs and Revocations:

Jeff Sheridan

NOON                           Lunch (Included)

1:00-1:30 pm                 What Not to Do and How Not To Do It:

Samuel McCloud

1:30-2:30 pm                 Representing the Mentally Ill DWI Defendant:

Anna McLafferty (National Alliance on Mental Illness of Minnesota)

2:30-2:45 pm                 Break

2:45-3:30 pm                 McNeely – Vindication and Application of Netland, Shriner and Wiseman:

Panel Discussion by Lead Attorneys:

Chuck Ramsay, Jeffrey Ring, Jeff Sheridan

3:30-4:30 pm                 Standardized Field Sobriety Testing – Problems and Procedures:

Rebecca Rhoda Fisher, Sharon R. Osborn, Pamela King

4:30 pm                        Adjourn for Social Hour

No prosecutors will be permitted. Click here for the flyer, more information and registration.

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Nobody can deny the tremendous impact the U.S. Supreme Court's decision in Missouri v. McNeely will have on how we handle Minnesota DWIs in the future. The McNeely decision breathed some much needed life into what many perceived as an ailing and weary Fourth Amendment - an Amendment that, together with the First Amendment, forms the absolute bedrock of a free society.

We've been preparing for years in the hopes that our Courts - as stewards of the Constitution - would interpret the Fourth Amendment in a way that makes sure that it actually does apply to DWI arrests. And now they have.

But change is difficult, even when it is staring you in the face. As every state in the union comes to terms with the new legal landscape post-McNeely, Minnesota is facing a particularly difficult upheaval, much more than most other states. This is due to two unique aspects of Minnesota law - the criminalization of test refusal (coerced consent) and the codification of suppression (I'll explain that in a minute).

First, consent: The vast majority of states didn't take the extreme step of outright criminalizing test refusal; Minnesota is in the minority of jurisdictions that makes it a crime to withhold your consent to a warrantless search. So, many states can safely wade through their pending and future DWI cases relying on the fact that most people will say "yes" when asked to submit to a blood, breath or urine test, and their consent eliminates the need to obtain a warrant.

But that's not Minnesota - in Minnesota, "yes" comes at the barrel of a gun, and can hardly be considered to be true consent. When saying "no" is a crime, it will always be nearly impossible for the government to persuasively argue that anyone is actually consenting to submit to a test.

Second, suppression: the courts have had a long-standing rule that evidence obtained in violation of the Constitution is inadmissible in court, referred to as the "exclusionary rule." There are a lot of policy reasons behind this rule, but it is sufficient to point out that if this illegally obtained evidence wasn't suppressed, we could just as well delete the entire Fourth Amendment and call it the "Bill of Guidelines" instead of the Bill of Rights.

Now, the federal courts have recently developed a new doctrine dealing with suppression, calling it the "good faith" exception to the warrant requirement. Again, it suffices to say that if an officer conducts a search that he believes to be constitutional, but that law is later overruled, this "good faith" exception basically means that even though the search was illegal, the evidence is still admissible in court.

Again, in many other states this means that all of the DWI cases put on hold pending McNeely didn't gain much from that decision. Their searches may have been illegal (unless they were consented to), but the evidence comes before the jury anyway, so it's a pretty hollow victory.

But Minnesota is different - where our Legislature made the questionable decision of criminalizing the act of not consenting to a warrantless search, they also made the inspired decision to pass a specific law that mandates the suppression of evidence for any illegal search. Minnesota Statute 626.21 says in no uncertain terms that illegal searches = suppressed evidence. Our own Minnesota Supreme Court has also repeatedly rejected the need for such a rule.

So Minnesota is in a pickle (to be fair, it's a pickle that could have easily been avoided): prosecutors can't say with a straight face that everyone has been consenting to their blood, breath and urine tests. The best they can say is that drivers keep saying "yes" after being properly threatened. And then, prosecutors have no "good faith" exception to fall back on, meaning if they want to maintain their DWI cases against our clients, they are going to have to prove that there simply wasn't enough time to get a warrant before our client's slipped below the legal limit. Considering the fact that we're still not properly training our officers on the simple task of obtaining a telephonic warrant, I don't see that argument being very successful.

There will be some significant growing pains in Minnesota as a result of the McNeely decision. There is a good chance many DWIs will be thrown out of court. But in the end, everyone will have a renewed respect for the Fourth Amendment; courts, prosecutors, defense attorneys, the legislature, and the general public. And that, too, makes us all safer.

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BREAKING NEWS: 

TODAY the United State Supreme Court vacated a Minnesota DWI Urine test case and remanded back to Minnesota. 

This means that Urine & Breath test cases also are affected by the McNeely decision. 

This marks the end of most of Minnesota's DWI statute.

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Our own Charles Ramsay, known and respected across the country for his legal knowledge, appeared on WCCO Channel 4 News last night to provide his analysis of the recent Supreme Court decision in Missouri v. McNeely.

While prosecutors are publicly downplaying the impact of the decision, Ramsay explained how this broad reaching decision will affect not only blood test cases, but also breath and urine cases, and that law enforcement agents will need to quickly change their current procedures or risk having all test results thrown out of court.

You can watch the video of his interview below:

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Charles Ramsay appeared on KSTP Eyewitness 5 News last night to discuss the recent Supreme Court decision in Missouri v. McNeely and provide his experienced analysis.

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

Make no mistake - this decision will have a tremendous impact on all future DWI cases. This case marks an important shift towards a stricter interpretation of our Constitution's Fourth Amendment, upholding personal privacy rights against the steady onslaught of decisions that have steadily eroded our constitutional protections in the name of "efficiency."

A healthy respect for everyone's privacy does nothing to prevent law enforcement from doing their jobs - instead, it ensures that fewer innocent people will be subjected to intrusive searches on the whim of police officers. Hundreds of DWIs may be thrown out of court as a result of this decision, but in the long term, the legal system will be further strengthened and we will see less examples of "rogue" cops who would like to act with as little judicial oversight as possible.

Expect much more litigation in the aftermath of the McNeely decision, as courts nationwide (including Minnesota) come to terms with exactly how far-reaching the impact of this decision actually is.

Here's the video:

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The manner in which the police enforce Minnesota's DWI laws was fundamentally changed this morning, when the Supreme Court of the United States (SCOTUS) issued a landmark decision in the case of Missouri v. McNeely (link leads to a copy of the opinion).

It's a complicated decision broken down into four parts (some parts commanding a majority, some not), a concurrence, and a dissent. It will take time to fully digest exactly how many ways this decision will affect the future of Minnesota DWI law enforcement, but one thing is very clear.

The Supreme Court just overturned the decision in State v. Netland, a case we brought before the Minnesota Supreme Court in 2009. As a direct result of the McNeely decision, there is no longer a "single factor exigency" doctrine to speak of, meaning that law enforcement around the state (and the nation) will have to at least consider obtaining a search warrant prior to administering a chemical test for intoxication.

This will have a major impact on law enforcement practices going forward, but will have a much bigger effect on the many cases currently in the court system. We've been positioning our client's cases for months in anticipation of this decision, and plan to take full advantage of this fundamental change in the case law to benefit our clients.

The importance of this decision cannot be understated. Not only does the McNeely decision eliminate the judicially-constructed doctrine of "single factor exigency" once and for all (and add renewed strength to the privacy protections that are the cornerstone of the Fourth Amendment) but it opens a whole new can of worms in Minnesota. For starters, there is a good chance that Minnesota's test refusal law is no longer constitutional, and will have to be discarded.

We'll bring you more information once we've had a chance to fully digest the impact of this decision, but in the meantime, you may want to read some of our previous blogs leading up to today's opinion:

Agents of the Constitution: The "Show Me" State Protects the Fourth Amendment

U.S. Supreme Court to Decide if DWI Laws Are Unconstitutional

Minnesota's DWI Test Refusal Law in Review: Why the Crime of Test Refusal is Currently Considered Constitutional

The Future of Minnesota's DWI Law: How the McNeely Decision Will Affect DWI Arrests Here At Home

And again, if you'd like to read the actual language of the decision in Missouri v. McNeely, you can find it here. 

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