As we discussed previously, the McNeely decision could have a huge impact on the way DWIs in Minnesota are handled in the future. The specific question presented to the Supreme Court of the United States (“SCOTUS”) in McNeely is as follows:
“Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.”
We know how the Minnesota Supreme Court answered that question; the holding in the Netland case was “the evanescent nature of the evidence creates the conditions that justify a warrantless search.” If the SCOTUS rules the other way - if they rule that a warrantless search is not justified solely on the basis of exigent circumstances - the decision in Netland will no longer be good law.
Of course, the SCOTUS could simply decide that exigent circumstances always apply to DWI searches, effectively agreeing with the current state of Minnesota law. However, if they choose to rule the way we think they will (upholding the Fourth Amendment and refusing to further erode the protections afforded by that amendment) the most important question will be “is there ever a circumstance where law enforcement can perform a chemical test without a warrant?” And the answer to this question is what will determine how the McNeely decision impacts Minnesota.
In many states, the argument could be raised that “exigent circumstances” don’t matter, because drivers will usually consent to a search (which is another exception to the warrant requirement). However this argument may play out in the various states, Minnesota is one of a handful of states that have gone to the extreme measure of criminalizing test refusal (the act of withholding consent). In most states, withholding consent results in a longer license revocation and a little less evidence of impairment at a criminal trial; in Minnesota, withholding consent still results in a longer license revocation . . . but also results being charged with a completely new, aggravated crime.
If I tell you to give me five dollars or I’ll punch you in the jaw, and you hand over the money, can anyone honestly believe that your act was consensual? A sane person would obviously answer “no” and that’s the same basic situation in Minnesota. It is difficult to imagine how a judge could rule that someone who agrees to a chemical test in Minnesota, after being directly told by a police officer that “refusal to take a test is a crime” did not feel coerced into agreeing to submit to that test. Now, nothing decided in a court of law is ever that simple, but if sane heads prevail, Minnesota will either have to do away with their criminalization of refusal, or be unable to rely upon the “consent” exception to the warrant requirement.
Which brings us back to the question, “ “is there ever a circumstance where law enforcement can perform a chemical test without a warrant?” Put another way, “can police obtain a warrant in a reasonable amount of time, in the knowledge that a driver’s alcohol concentration may be decreasing by the hour?” This type of analysis is performed regularly in other states (and was the state of the law in Missouri before the McNeely case), but Minnesota law enforcement is a little behind the curve on getting late night warrants (at least, that’s what they tell us whenever we put them on the stand . . . )
But even if our law enforcement will say it takes too long to get a warrant, the fact is that the Legislature has put all the procedures in place to ensure that getting late night warrants as quickly as possible isn’t all that difficult. Telephonic warrants are authorized by the Rules of Criminal Procedure, and our courts have already demonstrated that the procedure is perfectly valid. In fact, law enforcement was getting telephonic warrants in under an hour . . . back in 1993, before every teenager had a cell phone and every officer had internet access.
So, if the SCOTUS tosses the “exigent circumstances” argument as we expect, it will have a tremendous effect on both pending and future DWI cases. Because our refusal law, should it remain on the books, will blow the “consent” exception out the window, the admissibility of test results in Minnesota DWI cases will hinge on whether law enforcement had enough time to obtain a warrant. Currently, every officer we cross-examine says basically the same thing, “I didn’t even consider getting a warrant” or “I have no idea how to do that.” That’s a far cry from “there was not enough time to get a warrant because of X, Y, and Z.” And its even further from the truth - warrants can be obtained in less than an hour, perhaps as little as 20 minutes.
We could see a significant amount of DWIs dismissed in the aftermath of the McNeely decision. At a minimum, smart defense attorneys who are familiar with the law will have already laid the groundwork to raise such arguments once the SCOTUS issues their decision. And going forward, if the past is any guide, law enforcement (and sometimes even the courts) will be incredibly reluctant to change their ways and adapt to new circumstances, meaning that good defense attorneys will continue to get DWI test results thrown out of court long past the point where the government should have adapted.
But all this talk is focusing on people who submit to tests; what about those who do withhold their consent and refuse to submit to testing? McNeely could affect those cases too, and we’ll explain how in the next post.