Minnesota's Test Refusal Law: Finding a Loophole in a "Knotty" Law

Many consider the test refusal law to be unbeatable. The law is not straightforward and is difficult to understand. A lawyer well versed in the law, science and facts of your case can beat the crime of test refusal.

The law as it exists today came about to close a loophole in Minnesota’s DWI law. Decades ago, people refused to submit alcohol testing which limited the evidence available to the state. Then, the state passed the "Implied Consent Law." Under the original law, upon refusing to test the state would revoke a person’s license for one year. This caused most people to submit to testing. To increase those numbers, the state made it a crime to refuse testing under the Minnesota Implied Consent Act. This crime was treated the same as taking the test and failing. Later, when the state amended the criminal DWI law making the consequences more severe for those over .20, many drivers began to refuse to take the test rather than risk facing enhanced charges for a high alcohol test result.

Once drivers became more aware of the enhanced charges for a .20 or greater, more drivers again began refusing DWI tests rather than risk facing the more serious consequences. The state closed that loophole earlier this decade by making test refusal a crime more serious than merely failing a DWI alcohol test over .08 or more.

As a result of the piecemeal amendments to Minnesota’s Impaired Driving Laws, the laws have become an unconstitutional, knotted mess.

The refusal provision states:

 “It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2008).  Under the law, the refusal crime is more serious than taking and failing the test.

Is Minnesota’s DWI Test Refusal Law Constitutional?

Minnesota is one of fifteen states that make it a crime for a driver to refuse to submit to blood, urine or breath testing after being arrested for a DWI.  The rationale behind the criminal law is obvious: to coerce drivers into providing an alcohol test to increase the likelihood of conviction. 

No empirical data supports the government’s claim that the test refusal law makes the roads safer.  Particularly troubling, is that those who agree to submit a breath sample, may be charged with test refusal when the Intoxilyzer 5000 deems the sample to be deficient. 

I believe the law is unconstitutional as it compels citizens to waive their right to warrantless searches and seizure.  I argued this before the Minnesota Supreme Court last year, but the Court sidestepped the issue in State v. Netland.  The court left undecided one question, as articulated by the dissent.

Minnesota Intoxilyzer 5000: Using Science to Beat a Test Refusal

Fortunately, DWI lawyers who are particularly skilled and knowledgeable about Minnesota’s Implied Consent DWI law may be able to beat a DWI test refusal charge when the driver submits to the Intoxilyzer 5000 breath test. 

The local twin cities media has reported on how I’ve exposed flaws in the breath test software causing the Intoxilyzer 5000 to erroneously deem a person to have refused to submit to a breath test.  The documents I’ve discovered and the testimony I’ve elicited have resulted in a federal judge ordering CMI to disclose the source code to Minnesota defense attorneys.

A driver is not likely to beat a breath test refusal charge without a Minnesota lawyer who knows the scientific flaws of the Intoxilyzer 5000, the issues involving the source code and how the state’s experts will testify in court.

Blood Tests and Urine Tests: Using the DWI Law’s Provisions to Beat the Refusal Law

A client hired me last month in a blood test refusal case.  I thought the facts from the case can help explain how to beat a test refusal to test charge. 

 

My client was stopped by police and arrested on suspicion of driving while intoxicated.  The officer took her to a hospital for a blood test.  The officer asked my client if she would submit to a blood test and my client agreed. 

 

Here are relevant facts from the officer’s police report:

 

I began to read the Implied Consent document to “Kim.” Kim agreed to take a blood test.  An RN assisted me with the blood draw.  I opened the blood kit and began filling out the paper work. Kim was physically pulling away from the nurse when she put the tourniquet on her arm.  Kim said she didn't like needles. I explained to Kim that this was a registered nurse and she will be fine.  Kim would not let the nurse touch her. 

Kim would physically pull away every time the nurse would touch her arm. I explained to Kim that she already agreed to take the blood test and that if she did not allow the nurse to take blood that it will be considered a refusal. 

Another nurse was called to assist. The nurse said she will hold her arm straight for her while the other nurse inserts the needle.  Kim lifted her feet off the floor almost kicking the nurse in the stomach, RN told Kim that the other nurse was pregnant and that she needed to settle down. Kim said “just do it.”  RN attempted again to draw blood and Kim pulled away swinging her arms. RN said that she would attempt one more time because she was making it dangerous with the needle.  Kim again physically pulled away from the nurse, RN said she would not draw blood because she was physically uncooperative and it was dangerous.  Due to Kim’s aggressive behavior all testing was stopped.

Kim refused to test.

Does this violate Minnesota’s Implied Consent/DWI Test refusal law?   No.

Under the Statute, “action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.  Minn. Stat. § 169A.51, subd. 3 (emphasis added). 

It is clear that the legislature never intended for a person to be subject to criminal charges simply for refusing a blood test or urine test without being offered an alternative.

In this example, although Kim said she would submit to a blood test, she prevented the RN from withdrawing blood and she refused the test.  However, the officer should have offered Kim the opportunity to submit to a urine test before declaring, “Kim refused to test.”

Because no action can be taken against a person for refusing to submit to a blood test unless an alternative test is offered, the judge should dismiss the test refusal charge.  As a footnote, the state took my client’s car in this very real case.  Once the judge dismisses the refusal charge the state will be forced to return my client’s car to her. 

If you have been charged with DWI, DUI or Refusal to Submit to Testing, call Chuck Ramsay immediately.

 

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Comments (1) Read through and enter the discussion with the form at the end
Harrisburg DUI Lawyer - December 21, 2009 2:11 PM

Amazing that in your state the act of refusing to submit to a chemical test is an independent crime! This is governmental over-reach. Assert your rights, say no to a warrantless search of your body and catch a charge.

In 2009, we call it a crime.
What about in 1786?

You know what? It is so funny how we forget our not too far removed history.

In the winter and spring of 1786-1787, twelve of the thirteen states chose a total of 74 delegates to attend what we now know as the Federal Convention in Philadelphia, they refused imperial overreach into their daily lives. We celebrate and thank them every 4th of July as visionaries and great men.

Boy how have times changed.

___________
-Justin J. McShane, Esquire Pennsylvania DUI Lawyer

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