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

Many times the consequences for being arrested for DWI start before you even appear in court. A weekend arrest can mean that you sit in a jail cell – unable to post bail – until Monday morning. An arrest during the work week can mean spending two or more days in jail before you even appear in front of a judge. And regardless of your alcohol concentration, an arrest can sometimes lead to being held in a secured detox facility for at least 72 hours.

This is a major problem for people who have jobs to get to, kids at home, or value their freedom. Being held in custody, for days, without even appearing in front of a judge is a degrading and demeaning experience. Luckily, there are ways to avoid the long wait, and get back to your life.

When you or a loved one is being held in detox, we can file a writ to have them immediately released . . . even on a weekend. If someone is being held in jail pending a hearing, we can contact a judge and, in most cases, either get them released outright, or at least get bail set so that they can go home.

Sitting in jail for three days just because you were arrested for (not convicted of) DWI is an avoidable situation, as long as you know what to do and how to properly do it.

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Yesterday the Commissioner of Public Safety filed a Petition for Accelerated Review with the Minnesota Supreme Court. This Petition follows the April 27, 2011 Order of the Minnesota Court of Appeals granting the Petition for Discretionary Review which was filed by counsel for Minnesota Petitioners and Defendants. 

You can view the Petition for Accelerated Review here.

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The Minnesota Court of Appeals issued an order last week which could signal a dramatic shift in the way DWI alcohol tests - especially urine tests - are conducted, while breathing new life into the Fourth Amendment.

In DWI arrests where the police obtain a breath or a blood sample, the Minnesota Supreme Court has held that there is no need to obtain a warrant before getting a sample. While blood, breath and urine tests are considered “searches” for the purposes of the Fourth Amendment Warrant Clause, our Supreme Court crafted a narrow exception to the warrant requirement in DWI cases where blood or breath samples were collected. The Court ultimately held that the, “rapid, natural dissipation” of alcohol in a person’s bloodstream meant that there was no time to obtain a warrant –that any driver’s alcohol concentration could fall below the legal limit while the police were in the process of obtaining a warrant. 

While this “single factor exigency” doctrine has never been approved in urine test cases, the trial court did so in the case of Swanson v. Commissioner of Public Safety. In that case, an expert witness testified to the common fact that urine alcohol concentration doesn’t “rapidly dissipate” like blood and breath alcohol (as we’ve said for years, the only way your urine alcohol concentration decreases is by voiding your bladder). Despite this testimony, the court held that an officer still did not have time to obtain a search warrant without losing alcohol evidence, and upheld the license revocation. Sam McCloud, the attorney representing the driver in Swanson, rightly appealed to the Court of Appeals.

Then, in a rare procedural move, the Court of Appeals did two things: it signaled its intentions to hold that the “single factor exigency” doctrine does not apply in DWI urine cases, but then chose to send the case back to the trial court to further develop the record. Specifically, the Court wanted to make sure that no other exceptions to the warrant requirement (specifically, the “consent” exception) were present. 

In its order, the Court of Appeals said:

“Hypothetically, if this court were to hold that the exigency exception does not apply, a remand would be necessary to determine the applicability of the consent exception, for that issue was not decided by the district court and was not briefed or argued on appeal. To foster a meaningful review in this appeal, the district court must decide the applicability of both exceptions. Therefore, the district court is directed to decide the issue of whether the consent exception applies in this case, and the matter is remanded as to that issue.”

In our humble opinion, if the Court of Appeals agreed with the trial court, it simply would have affirmed the lower court’s order. Because it remanded the case for further proceedings, it appears the court of appeals believes the consent issue to be controlling. Talk about a positive sign – right on the heels of the Supreme Court’s decision to review the science behind urine testing, the appellate courts are now also carefully considering the science behind drunk driving offenses. 

So, the question is now, “did the driver actually consent to a urine test?” Well, we suggest you stay tuned - later this week we’ll explain exactly why the driver did not consent, and why Minnesota is one of very few states where saying “yes” to a urine test isn’t the same thing as consenting to a urine test.  

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