Minnesota Supreme Court Hears Bernard Oral Arguments


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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Finds Per Se DWI Search Statute Unconstitutional

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

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

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

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

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

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

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

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

Minnesota Supreme Court Sets Oral Arguments On Bernard Case

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

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

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


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


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

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

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

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

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

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


Four DWI Cases Granted Review by Minnesota Supreme Court

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

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

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

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

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

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

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

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



Supreme Court Upholds Integrity of the Warrant Requirement

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

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

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

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

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

Minnesota Supreme Court Rules "Necessity" Defense Does Not Apply to DWI

Today, the Minnesota Supreme Court released its decision in the case of Axelberg v. Commission of Public Safety. In a 4-3 decision, the Court concluded that Minnesota's Commissioner of Public Safety has the absolute authority to revoke the driver's license of an intoxicated victim of domestic abuse if she (or he) tries to flee (or even hide from) their attacker in a motor vehicle.

The facts of the Axelberg case are sordid, and we laid them out for our readers when the Supreme Court accepted review of this case, but the case can be effectively summarized this way: Axelberg, who had been drinking, was assaulted by her husband at a remote location where they were vacationing. Axelberg, without a cell phone, eventually locked herself in her car to avoid her husband's assault. After he punched the windshield hard enough to break it, she started the vehicle and fled to a nearby resort, driving less than a mile. Axelberg's husband followed her on foot, and was only prevented from further assaulting Axelberg when police were called to the resort.

Axelberg's husband was arrested and taken into custody . . . and the Commissioner of Public Safety revoked Axelberg's driver's license due to the fact that her alcohol concentration was over the legal limit. The Minnesota Attorney General's Office appeared in Court, and argued that it not only had the right to revoke Axelberg's driver's license, but also that Axelberg did not even have the right to explain why she drove while over the legal limit, or raise the ancient, common law defense of "necessity."

Four justices from the Minnesota Supreme Court agreed with the government attorneys, and concluded that Axelberg was precluded from even arguing that her flight to safety (for 9/10 of a mile along a deserted rural road) was permissible under Minnesota's Implied Consent law. Effectively, the Court concluded that because the Implied Consent law does not explicitly permit intoxicated drivers to flee from domestic assault as a last resort, the defense is entirely unavailable no matter how severe the situation. Today, Axelberg not only lost her license as a result of her decision to hide from her attacker, but this license revocation is treated exactly like a conviction for DWI for the purposes of enhancing future offenses.

The decision in Axelberg prompted three strongly worded dissents from three justices. One of the dissents, authored by Justice Lillehaug, wasted no time pointing out that the Commissioner of Public Safety, responsible for punishing Axelberg for her decision to flee from domestic abuse, has the statutory responsibility to promote, "the highest attainable standards of . . . justice for crime victims" and is actually expected, by statute, to advocate for the rights of victims of domestic violence. The dissent then pointed out that "it is hard to imagine that the Legislature intended that the judiciary revoke the license of victims who drive only to escape domestic violence."

A second dissent, authored by Justice Wright, underscored just how unreasonable the result in Axelberg really is, emphasizing that the role of our judicial system has always been to be fair, and that the defense of "necessity" has existed for centuries for just that reason - fairness in the application of our laws. Justice Wright then took the time to carefully outline the serious problems that our society continues to face when it comes to domestic violence - importantly pointing out how access to a vehicle should provide a level of independence and security to a battered woman . . . and not another shackle tying her to her abuser.

The final dissent, authored by Justice Page, neatly summarized the decision reached by the majority when it pointed out that, "By its decision, the court also discourages domestic abuse victims from even seeking refuge in a motor vehicle. Based on our case law, today's decision deprives many victims of domestic violence of the only available refuge." This dissent also highlighted a great deal of case law that would support the application of the "necessity" defense in an Implied Consent hearing.

The Axelberg case is a very troubling one, calling into question not just the problems our society continues to have with drunk drivers and domestic violence, but what role we expect our laws and our judges to fill in ordering that society. This includes questions about the role of our government attorneys, who pressed the Axelberg case all the way to the Minnesota Supreme Court.

Needless to say, as the authors of the amicus curiae brief that we filed in support of Axelberg, we are disappointed in the result reached in this case. Even more hard work was put into this case by Ryan Pacyga and his team, from the start of this case in Kanabec County all the way to the Minnesota Supreme Court.

The one question that needs to be answered now is this: does the Legislature have the political will to fix this situation and protect the rights of domestic abuse victims against an overly rigid set of DWI laws?


Breaking News: Minnesota Supreme Court to Determine Constitutionality of Minnesota's Test Refusal Law

The Minnesota Supreme Court just accepted review of the State v. Bernard case.  This means that we will soon have final word from our State's highest Court on whether it is constitutional to make it a crime for an individual to politely refuse to submit to a warrantless search. 


Warrantless searches are presumptively illegal, a fact that the Bernard decision addressed by crafting a new "inevitable warrant doctrine."


The appeal process for the Bernard case started when the government appealed a judge's ruling that the test refusal law is unconstitutional, meaning the timelines for this appeal are shorter than in a more typical case.  We can optimistically expect the Supreme Court to issue its decision by the end of this year.

Another Shot Fired Over the Constitutionality of Minnesota's DWI Test Refusal Law

Minnesota is one of very few states that make it a crime to refuse to submit to a DWI test - the vast majority of states simply impose a longer license revocation against drivers who refuse. Minnesota's rare and troubling practice - making refusal to submit to a warrantless search an independent crime - appears to be unconstitutional. That appearance is causing a major conflict between defense attorneys and prosecutors, between prosecutors and cops . . . and also between Minnesota judges and other Minnesota judges.

Is it constitutional to put someone in jail for refusing to submit to a warrantless search and seizure? This is the question that has plagued Minnesota courts for over a decade, and it is a question that is quickly coming to a head. The Minnesota Supreme Court is in a position to answer that question once and for all later this year.

But in the meantime, Minnesota's DWI law is in a state of pure turmoil. In the past year, many district court judges around the state have concluded that the crime of test refusal is unconstitutional. After judges started declaring the law unconstitutional, the Minnesota Court of Appeals stepped in and in the case of State v. Bernard, crafted a brand-new doctrine that appeared to make the crime of test refusal legal. This Bernard decision was famously ignored by at least one judge who was completely unpersuaded by the newly crafted "inevitable warrant" doctrine.

Today, the Court of Appeals issued another decision finding the test refusal law constitutional, in the unpublished case of State v. Mawolo. And while it was completely expected for the Court of Appeals to follow the logic of the recently issued Bernard case, what was completely unexpected was to see another judge step up and proclaim, in effect, "we are getting this wrong, and we need to fix it before it's too late."

That is a paraphrase from the dissent in the Mawolo case, where one member of the three judge panel made it clear that "the analysis in Bernard" was "flawed" because it "creates an exception that renders the Fourth Amendment meaningless . . ." I highly suggest reading the whole dissent - it is both scholarly and very much to-the-point.

This likely will not be the last judge to openly defy the holding in the Bernard decision, and with every new voice in opposition, the constitutional crises in Minnesota deepens.