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? 

Idaho Supreme Court Rejects Implied Consent Law

The upheaval that resulted from the United States Supreme Court's 2013 decision in Missouri v. McNeely continues to spark changes to DWI laws across the nation. Yesterday, Idaho joined the growing ranks of state Supreme Courts that have rejected "Implied Consent" as a method of enforcing a state's DWI laws. We've talked about some of them - Nevada, Kansas, and Texas are some recent examples. Now we'll tell you about Idaho, which not only rejected "implied consent" as a valid basis to conduct a DWI test, but overruled its own prior cases in reaching that conclusion . . . a candid admission that the legal landscape has changed since McNeely.

In the case of State v. Wulff, the Idaho Supreme Court held that "the district court properly concluded that Idaho's implied consent statute was not a valid exception to the warrant requirement" and agreed that the blood test taken from Mr. Wulff was inadmissible as evidence against him. In plain English, the Court said that the state could not use Mr. Wulff's blood alcohol evidence against him at trial because the State did not prove that he freely and voluntarily consented to a blood test.

Now, before this case came down, Idaho (like Minnesota) had ruled that officers could always administer a blood or breath test, under the "single-factor exigency" doctrine that was rejected in the McNeely case. Idaho, this time unlike Minnesota, also created another "automatic" exception to the warrant requirement, claiming that every driver consented to a blood or breath test simply by driving on Idaho's roads.

The Wulff decision quickly admitted that the McNeely decision eliminated the "single-factor exigency" exception, and then immediately went a step further. The Idaho Supreme Court concluded that McNeely also eliminated any legal claim that drivers could be told they automatically "consented" the moment they drove on a public road. Here's the key quote:

However, McNeely's overall discussion suggests a broader reading: that implied consent is no longer acceptable when it operates as a per se exception to the warrant requirement because the Court repeatedly expressed disapproval for categorical rules . . . irrevocable implied consent operates as a per se rule that cannot fit under the consent exception because it does not always analyze the voluntariness of that consent.

Contrast Idaho's treatment of "consent" with Minnesota and you'll see a stark difference. As of this writing, the Minnesota Court of Appeals has issued around 50 decisions dealing with consent, and in every single case has concluded that the driver consented - and some of those decisions have explicitly stated that the driver consented as a matter of law. Minnesota is effectively attempting to craft another "automatic" exception to the warrant requirement . . . whereas Idaho and many other states have carefully rejected such an approach.

Last year, we made an attempt to bring this issue to the United States Supreme Court, and this year, we're renewing our attempts. We'll post an update on that front soon, but in the meantime, we'll continue to inform our readers about what's going on in other states, as it can only help us in analyzing what is going on in Minnesota.


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!


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.



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.