Science As Your Best Defense: Landing the Right Attorney To Defend Your DWI

Nobody wants to be arrested for a DWI. In my experience, very few people ever set out for the evening saying, "let's roll the dice and see if we can get away with driving while impaired tonight." The few folks that do say or think something like that probably have their particular defense attorney on speed dial, but for the majority of Minnesotans, the fact remains that getting arrested for DWI is usually a shock, and after it happens, the shocks just keep coming.

People proactively hire an estate law attorney when they want to provide for their family's future. People proactively hire a patent attorney when they want to protect a new invention. People hire a business law attorney when they want to take a new idea and turn it into a (hopefully successful) business.

But nobody proactively hires a DWI defense attorney. Shortly after being arrested for DWI comes the scramble -- the scramble to get out of jail, to get back to work, to deal with the shame, to deal with the impact losing your license or your car can have on your family . . . and the scramble to find a defense attorney.

A good DWI defense attorney helps with all of those other situations, but finding a good one is the type of "scramble" that requires a lot of extra care. There are a lot of attorneys out there who are happy to take as much of a person's money as they think they can get away with, while also having every intention of putting as little effort as possible into the case. We call 'em "dump truck" attorneys in Minnesota, or "meet 'em, greet 'em, and plead 'em" attorneys.

All of this was just a roundabout way of asking the rhetorical question, "what makes for a good DWI defense attorney?" I can't answer that question completely in this post, but I can make one good start -- a good DWI defense attorney is one who is repeatedly asked to educate other defense attorneys on how to be better defense attorneys. 

Enter Chuck Ramsay, founding partner of Ramsay Law Firm. He's got a long list of credentials; today's post is just to highlight that he is once again taking up his role as faculty for the National College of DUI Defense, and spending his weekend teaching at the multi-day "Science As Your Best Defense" seminar alongside all of the other big names in DWI defense (if you're keeping track, you'll notice that he's the only attorney from Minnesota to carry such an honor). 

If you've been arrested for a DWI in Minnesota, there is one tiny bit of good news amidst the scramble to put your life back in order: you got arrested in the one state that Charles Ramsay continues to practice DWI defense, day-in and day-out. Give him a call. 

Final Briefs Submitted in Trahan and Thompson

We recently witnessed significant upheaval in the area of DWI law (again). If you missed it, the United States Supreme Court found portions of Minnesota's DWI Test Refusal law unconstitutional. Specifically, it is no longer a crime for a driver to refuse to submit to a blood test after being arrested for DWI (now, if the police have a warrant, that's another matter . . .)

But blood tests are not the only tests given in Minnesota -- we are one of the very few states that still use urine alcohol testing. While the U.S. Supreme Court did not directly address whether or not it is constitutional to refuse to submit to a urine test (note: they did reverse one of our client's convictions that was based on a urine test) the issue is about to be decided by the Minnesota Supreme Court

We held oral arguments on Thompson (which will decide if drivers can legally say "no" to warrantless urine tests) in the beginning of June, and if you're really that interested you can watch the oral arguments here

But the reason for all that background is this: after the Bernard decision came out, the Supreme Court ordered "supplemental" briefing in Thompson  -- basically, an opportunity for all the attorneys to adjust their arguments to take into account these recent legal developments.

Wanna read those supplemental briefs? If so . . . here you go. Note that these are just for the Thompson (urine refusal) case . . . we'll get you the Trahan (blood refusal) supplemental briefs shortly. Enjoy!

The State's Brief

Our Brief

The ACLU Amicus Brief

Minnesota Attorney General's Amicus Brief



Upcoming Web Seminar Explaining the Recent Bernard Decision

Wondering what the recently issued Bernard decision means for DWI law in Minnesota?

We've got you covered. We've partnered with MinnCLE to present an hour-long webcast on Wednesday, June 29 from 9:00 - 10:00. The seminar has been pre-approved for one CLE credit, and in it we'll be describing the immediate consequences of the Bernard decision, the potential consequences, and the areas of law that were left unaddressed.

Don't wait until tomorrow - sign up today (Event Code 218996). We're already looking forward to your questions. 

Charles Ramsay Discusses the Bernard Decision With KARE11 News

Ramsay Law Firm's Charles Ramsay recently appeared on KARE 11 news to discuss the impact of the recently issued Bernard decision, handed down by the United States Supreme Court on Thursday. 

While breath testing is no longer considered to be protected by the warrant clause of the Fourth Amendment, blood testing is, and urine testing is . . . an open question.

Here's the video. 

SCOTUS Issues Bernard Decision

Today we all received the long-awaited decision from the United States Supreme Court in Bernard v. Minnesota (technically it was three consolidated cases, but here we'll just refer to the whole decision as "Bernard.")

First things first -- if you want to read the opinion, you can find it by clicking right here




On to the meat of it: The Bernard decision consists of three basic holdings:

1. DWI breath alcohol tests now qualify as "searches incident to arrest." That means they are not protected by the warrant clause of the Fourth Amendment and a driver can constitutionally be penalized criminally if they refuse to submit to such a test. This implicates everyone who refuses a breath test.

2. DWI blood alcohol tests do not qualify as "searches incident to arrest." That means that drivers have the absolute right to say "no" or "get a warrant" if an officer demands a blood test, and Minnesota's DWI test refusal law is unconstitutional with respect to demands for blood tests. This implicates everyone who refuses a blood test.

3. If a driver says "yes" to a demand for a DWI test after being told that refusal to submit to that test is a crime, the State can't claim that the driver's "implied consent" to submit to the test means that they "actually" consented. This potentially implicates everyone who agrees to submit to any type of test. 

That's what Bernard says; here's what it doesn't say:

1. What is the status of urine tests? The vast majority of states don't even try to use urine tests in DWI cases; Minnesota is the rare exception. Bernard leaves open the question of whether or not a urine test can be considered a "search incident to arrest" or whether it has the same protections as a blood test (note that Ramsay Law Firm argued this exact issue in front of the Minnesota Supreme Court this month, and the answer is in the pipeline). 

2. What does it mean to "consent" to a blood, breath, or urine test . . . especially after being told that "refusal to take a test is a crime (when that is only true sometimes). The Supreme Court disposed of the concept of "implied consent" when it comes to the government's ability to try and obtain criminal evidence, which opens the door wide open for the Courts to reconsider what it takes to actually "freely and voluntarily" consent to a DWI test. 

Some of the consequences of the Bernard decision:

1. We're going to see a renewed emphasis on the pitfalls of breath testing, and our firm will be spending much more time exposing the serious limitations that impact breath tests on behalf of our clients. Law enforcement will undoubtedly be using breath tests at every opportunity in order to avoid the warrant requirement, meaning the critical shortcomings that affect breath tests (and not blood tests) are going to become much more glaring.

2. The Minnesota Legislature is going to need to rewrite Minnesota's Implied Consent law. As written, the Advisory read to every arrested driver informs them that they are "required by law" to submit to testing and that "refusal is a crime," statements that are simply not true in light of Bernard.

We'll be providing much, much more analysis of the decision in the near future -- in the local media, at seminars sponsored by Minnesota CLE, and of course, right here on our blog. Stay informed.

But for now, things are certainly interesting. 

Supreme Court Update (Of Sorts . . . )

Things are about to get interesting when it comes to the state of DWI law in Minnesota. In the near future we've got two big events: The United States Supreme Court's decision in Bernard v. Minnesota, and oral arguments before the Minnesota Supreme Court in the Thompson and Trahan cases.

Bernard v. Minnesota

The United States Supreme Court issues its decisions on Mondays at 9:30 a.m. EDT, and goes on summer recess in July. Because the Court almost always issues a decision in the same term that a case was argued (and Bernard was argued this term) we can expect a decision sometime in June. 

So, we should get an answer regarding the constitutionality of Minnesota's DWI breath testing program within a month -- either on June 6, June 13, June 20, or June 27. For what it's worth, I'm guessing we'll get a decision on June 20; others believe that because Bernard was one of the last cases argued, it'll be one of the last decisions issued, and we'll get an answer to all our questions on June 27. 

We'll be posting the decision as soon as it is issued, along with our initial analysis, so no need to sit on the courthouse steps in Washington D.C., just check our blog for the next few Mondays any time after 9:30 a.m.

Thompson & Trahan

On the local front, Ramsay Law Firm will be arguing the Thompson case at the Minnesota Supreme Court next Wednesday, June 8, at 10:00 a.m.  The Minnesota State Appellate Public Defender's Office will be arguing the Trahan case one hour earlier, at 9:00 a.m. That means the whole morning will be dedicated to one question: is it constitutional to criminalize the act of refusing to submit to a warrantless demand for a blood or a urine test.

Seating at the Minnesota Supreme Court is limited, so if you want to observe the arguments live, it wouldn't hurt to get there a little early. In the alternative, you can always wait until Wednesday evening to watch the video rebroadcast


Backdoor Breath Testing 1: Why Law Enforcement Agencies Choose Breath Tests Over Blood and Urine Tests

As mentioned in the series introduction, breath tests are the most common tests given to DWI suspects in Minnesota. However, that is not law enforcement’s only option as they may also elect to offer a blood or urine test.  With such a high number of breath tests compared to blood and urine tests it is important to ask “why?” The short answer is simple: breath tests allow law enforcement to avoid the Constitution and the warrant requirement.

Without going into great detail, its enough to know that breath tests in Minnesota are currently conducted without a warrant.  The usual scenario involves an officer arresting a driver under a suspicion of driving under the influence, bringing the driver to jail (or a police station) and telling the driver that refusal to take the breath test is a crime. Once again, this is all done without a warrant.
The Minnesota Supreme Court upheld criminal charges for test refusal in Minnesota v. Bernard, stating that breath tests, while done without a warrant, fit within an exception to the warrant requirement. (As many of you are likely aware, that decision is currently being challenged at the U.S. Supreme Court.)
The key here is that the Minnesota Court of Appeals has recently held that Bernard only applies to breath tests; blood and urine tests still require warrants.  Therefore, a law enforcement agent cannot threaten a driver with a criminal charge for test refusal unless they are offering a breath test.  
Most law enforcement agencies in the state have reacted by only offering breath tests; and it is easy to see why: breath testing allows law enforcement to avoid the warrant requirement.  To conduct a blood or urine test, the poor officer would have to go through the painstaking process of following the Constitution—oh, the audacity of such an idea!
Not only do breath tests allow law enforcement to circumvent the Constitution, the test results are honestly not nearly as accurate as blood or urine tests. A final breath test result is affected by a lot of factors (how the subject blows, temperature, the environment in the testing room, and more) that simply don’t impact blood or urine tests. Scientifically, this means that we are more uncertain about the accuracy of breath tests than we are for other types of tests. Most of the following blog posts are going to go into great detail about this uncertainty, and by the time we’re done, you’ll be able to see just how absurd the current breath testing procedure in Minnesota really is. Here’s a hint: while the government experts will all agree that breath tests are far, far more uncertain than blood tests, those same experts will only tell us how uncertain their blood test results are – in other words, when it comes to breath tests, they’ll only give us a raw number, whereas blood tests are reported alongside a bunch of other data that specifically describe just how uncertain the final results are. So, a breath test (the more inaccurate test) will be reported as a, say, “0.084.” A blood test (the more accurate test) will be reported with far more detail, such as “0.084 ± 0.005 with a 99.7% confidence rate.”
We’ll explain why this simple reporting difference is such a colossal blunder shortly, so keep checking back!
Next Post:

Supreme Court Releases Audio Recording of Bernard Argument

The United States Supreme Court posted the audio of the Bernard argument this morning. Download it and review it at your leisure!

We highly recommend that everyone take the time to listen to the argument or read the transcript (or both if you are a Constitution enthusiast with a serious lack of plans this weekend). 

If you want to get right to the juicy bits, we’ve provided time stamps for some of the key portions of the argument below, including: 

32:25 Justice Roberts goes on the offensive, comparing the dangers of texting while driving to driving under the influence, pointing out that if law enforcement don’t have the authority to dig though driver’s cell phones they shouldn’t have the authority to dig through their bodies.

 43:35 Justice Kennedy discusses the “wake of our recent cases” regarding the undisputed fact that technological advancements make obtaining warrants quicker and easier than ever, and that warrants are the preferred method of executing a search.

44:08 Justice Kennedy points out that to rule in favor of the State would be to grant an “extraordinary exception” to the Fourth Amendment.

48:46 Justice Breyer realizes that the breath tests at issue in this case are not roadside breath tests, but evidentiary tests that are actually taken at the local police station and/or jail, and how that knowledge changes the tone of the entire argument.

56:00 Justice Sotomayor points out that the State is asking the Court to craft a new, “drastic” exception to the Fourth Amendment.

The whole argument is worth listening to, these are just some of the highlights.

Check back often as we will continue to provide analysis of Bernard v. Minnesota until a decision is issued—hopefully sometime in early June.

Minnesota's Test Refusal Law Argued at the U.S. Supreme Court Today

This morning the United States Supreme Court heard attorneys’ arguments on Bernard, a case which will decide whether drivers may be charged with a crime for refusing to submit to warrantless DWI alcohol tests.

Today’s oral argument comes after many years of fighting to uphold the promises and protections embedded in the United States Constitution, namely, the Fourth Amendment’s protection from unreasonable searches. Transcript of the argument can be found here.

More than four years ago we predicted the end of Minnesota’s DWI test refusal law because it violated individuals’ constitutional rights.

Two years ago we predicted the U.S. Supreme Court would overturn Bernard and Minnesota’s test refusal law. “[T]he United States Supreme Court still has the final say on this issue, as it involves one of our core (perhaps the core) constitutional protections.”

The court which currently consists of eight members is expected to issue its decision in June.

Until then, check back often for analysis and audio of the argument. 

Bernard Brief Bank: All Amicus Briefs Have Been Filed

In case you didn't already know, the United States Supreme Court is set to determine whether or not Minnesota's DWI laws are constitutional. The highest Court accepted review of three cases - here they are, with hyperlinks to the Supreme Court docket for each case:

Bernard v. Minnesota (14-1470): is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?

Birchfield v. North Dakota (14-1468): Is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?

Beylund v. North Dakota (14-1507): Is it constitutional for a state to claim that a driver "consented" to a warrantless search when that driver was threatened with the crime of refusal? 




The briefs in support of the Appellants (Bernard, Birchfield, and Beylund) have already been filed, as have the briefs filed by several amicus curiae ("Friends of the Court," attorneys love using Latin phrases).

The briefs in support of Respondents (the States of Minnesota and North Dakota) filed their own briefs, and now we’ve received copies of the amicus curiae briefs filed in support of those Respondents (you can find links to those briefs below)

Oral Arguments are scheduled for April 20, 2016.

We expect a decision in June

And one still-unresolved question (although it’s looking like we know the answer) is whether or not the cases will be heard by an 8 member court, or a full 9 member court.


Here is a link to our blog post providing the three “merits” briefs filed by the Petitioners.

Here is a link to half of the “amicus” briefs filed in support of the Petitioners.

Here is a link to the other half of the “amicus” briefs filed in support of Petitioners.

Here is a link to the three “merits” briefs filed by the Respondents.

And, here’s your update: Four “amicus” briefs filed in support of Respondent’s, including a brief filed by the Solicitor General of the United States of America. There is also one amicus brief “in support of neither party.”

California District Attorney’s Association

Council of State Governments, et. al.

New Jersey (and Seventeen Other States)

United States Solicitor General

Indiana Tech Law School Amicus Project (in support of neither party)

Petitioners have a little less than a month to file a reply brief, and then the written portion of this appeal will be complete – at that point, we’ll be waiting for oral arguments, scheduled for April 20.

Bernard Brief Bank: Respondent's Briefs Are Filed

In case you didn't already know, the United States Supreme Court is set to determine whether or not Minnesota's DWI laws are constitutional. The highest Court accepted review of three cases - here they are, with hyperlinks to the Supreme Court docket for each case:

Bernard v. Minnesota (14-1470): is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?

Birchfield v. North Dakota (14-1468): Is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?

Beylund v. North Dakota (14-1507): Is it constitutional for a state to claim that a driver "consented" to a warrantless search when that driver was threatened with the crime of refusal? 




The briefs in support of the Appellants (Bernard, Birchfield, and Beylund) have already been filed, as have the briefs filed by several amicus curiae ("Friends of the Court," attorneys love using Latin phrases).

Respondents (the States of Minnesota and North Dakota) recently filed their briefs, and we’ve provided copies of them below.

Oral Arguments are scheduled for April 20, 2016.

We expect a decision in June

And one still-unresolved question is whether or not the cases will be heard by an 8 member court, or a full 9 member court.


Here is a link to our blog post providing the three “merits” briefs filed by the Petitioners.

Here is a link to half of the “amicus” briefs filed in support of the Petitioners.

Here is a link to the other half of the “amicus” briefs filed in support of Petitioners.

And, here’s your update: The three “merits” briefs filed by Respondents (North Dakota and Minnesota)

Bernard v. Minnesota

Birchfield v. North Dakota

Beylund v. North Dakota

Check back often, we'll be posting the rest of the amicus briefs in support of Respondent soon (along with some analysis)


Bernard Appeal May Be Heard By Full Supreme Court

For those of you who don't know, oral arguments in the case of State v. Bernard (where the United States Supreme Court will determine whether Minnesota's DWI Test refusal law is constitutional) are scheduled for April 20, 2016. 

That's a little over a month from now; since we filed our briefs, the Court was rocked by the death of one of its most staunch protectors of the Fourth Amendment, Antonin Scalia. But today, President Obama officially announced his nominee to replace Justice Scalia -- Chief Judge Merrick Garland of the District of Columbia Court of Appeals

Anyone paying attention already knows that Republican Senators have vowed to withhold approval of anyone President Obama nominates, which lead most of those involved in the Bernard case to expect the final decision to come from 8, not 9, justices . . . meaning a chance of a "split decision" that provides no guidance (for the record, I personally don't believe that's a realistic possibility).

But now things are interesting -- Judge Garland appears to be the type of nominee that would be very palatable to Senate Republicans -- he's already been approved by the Senate before (when appointed to the D.C. circuit), and Senator Orrin Hatch (a high ranking member of the Senate Judicial Committee) has repeatedly noted that Garland would make a fine "consensus nominee" since as early as 2010. 

So -- how will the timing work out? The average time to appoint a nominated Supreme Court Justice is just 25 days. Chief Justice Roberts' appointment occurred 23 days after his nomination (well, his second nomination), while Justice Sandra Day O'Connor's approval process took 33 days and Justice John Paul Stevens took just 19 days. 

It might not be likely that Judge Garland will be appointed in less than a month (and there is the chance he might not be appointed at all) but President Obama appears to have picked a nominee with an eye towards a speedy and relatively non-partisan approval process.

What the addition of Justice Garland to the Supreme Court might do to the eventual outcome of the Bernard case is, of course, a subject for another blog. But for now, whether the Court consists of 8 or 9 members, all we currently know is that oral arguments are scheduled for April 20, and we are still expecting a decision in June of this year. 

Breaking News: Minnesota Supreme Court Grants Review of Thompson (DWI Test Refusal Law)

Back in December we posted the result of our appeal in the case of State v. Thompson, where the Court of Appeals ruled that Minnesota's DWI Test Refusal law was unconstitutional if law enforcement demanded a blood or a urine sample. Since then, the Court of Appeals has continued to affirm the fact that our DWI test refusal law is unconstitutional

The Thompson case is heading to the next level of review: We just received this order granting the State's petition for review, meaning that the Minnesota Supreme Court is set to have the final word on Minnesota's DWI test refusal law in 2016, and we'll be arguing that it is unconstitutional. 

Now, if you've been following our blog (or just legal news in general) you'll recall that the Minnesota Supreme Court already decided to review the test refusal law in the case of State v. Trahan. So why is this "breaking news?"

Trahan was just a blood case, whereas Thompson involves demands for both blood and urine samples, which may be why the Minnesota Supreme Court accepted review despite previously accepting Trahan. But there is more; this order granting review has some very specific details:

  1. Oral arguments will be held the second week of June. 
  2. The Minnesota Attorney General's Office has been "invited" to participate as amicus curiae ("Friend of the Court") which is effectively an order to participate in the matter.
  3. In addition to the issues previously presented in the case, the Court is also ordering us to address the fundamental question of what the appropriate legal framework is for addressing the constitutionality of our DWI test refusal law (as in, is this a due process challenge, a Fourth Amendment challenge, or some other challenge?). This additional question, not previously raised in the case, could have very broad legal repercussions. 

Then add this fact: the Supreme Court also issued a similar order in the Trahan appeal, ordering those parties to comply with the order just issued in Thompson, and expressing the intention that the parties work together on their briefs and be prepared to argue their cases on the same day. One thing is for sure, some day this June there are going to be a lot of lawyers crammed into the Supreme Court courtroom. 

In any event, Ramsay Law Firm is going back to the Minnesota Supreme Court, again challenging the constitutionality of Minnesota's test refusal law. But before we go, note one additional, interesting wrinkle: oral arguments on Trahan and Thompson will be held right around the same time that the United States Supreme Court issues its decision in Bernard v. Minnesota -- however these cases play out, the results are going to have a significant impact on the future of Minnesota's DWI laws. 

Using Due Process To "Set Right What Once Went Wrong"

In the early 90's I was a fan of the show "Quantum Leap." The premise of the show was pretty straight forward: Dr. Sam Beckett (played by Scott Bakula) was bouncing around through time as a result of a science experiment gone wrong. His mind would end up in someone else's body, and after this "quantum leap" he'd have a relatively short amount of time to correct some historical mistake (maybe the person he "leap"ed into died in an avoidable accident, or was in a position to stop a major injustice and failed to act). His holographic fried Al (played by Dean Stockwell) would use the early-90's version of Google to figure out what "went wrong" and would then suggest the best way to "set it right." If Dr. Beckett successfully managed to fix whatever historical mistake he was facing, he would then leap into another individual at another point in time, and the process would start over again.

I loved that show.

Today, a modern and less science-y version of Quantum Leap is happening in courtrooms around our State. Instead of Dr. Beckett being asked by Al to "set right what once went wrong" we're now filling Al's shoes and asking various judges to correct historical mistakes -- and we're having a lot of success.

The historical mistake is Minnesota's DWI Test Refusal Law; our legislature's decision to make it a crime for individuals to refuse to submit to warrantless searches. As we've blogged about previously, we recently convinced the Minnesota Court of Appeals to find that this test refusal law is unconstitutional whenever law enforcement demand a blood or urine sample from drivers (and the United States Supreme Court will soon decide if it is unconstitutional with respect to breath tests).

But the vast majority of driver's don't refuse to submit to testing . . . . which raises the question "what can we do to help?" The answer is very straightforward, and is tied to this ongoing "historical mistake" that is a fundamental part of our DWI test refusal law. This is because almost every driver in Minnesota is told two radically out-of-date pieces of information by law enforcement after being arrested for DWI: (1) Minnesota law requires you to take a test, and (2) refusal to take a test is a crime.

Now, if you clicked the links I provided above (or you just trust me) you know that those statements are outright lies: the "crime" of test refusal is an unconstitutional one. Yet law enforcement continues to follow this unconstitutional law and continues to tell drivers that refusal to take a test is a crime! That's where the due process violation comes into play.

The Minnesota Supreme Court has "consistently noted its concern that law enforcement officials not mislead individuals with respect to their obligation to undergo blood alcohol testing." That's why our Courts are charged with suppressing any test results whenever police "threaten criminal charges that state was not authorized to impose, thereby violating the constitutional guarantee of due process."

It's a simple but powerful argument, and we've already convinced judges from around Minnesota to "set right what once went wrong" and throw out blood and urine test results that were obtained after our clients were told (incorrectly) that "refusal to take a test is a crime." 

Minnesota's test refusal law has been on the books for decades, and has faced numerous constitutional challenges since it was first drafted. Recently, our Courts have repeatedly issued orders finding the basis for that law unconstitutional. Now, we're traveling around the State, client by client, county by county, and convincing judges to suppress DWI test results that were the result of our legislature's mistake -- leaping from judge to judge, until the day comes where our appellate courts rule on this issue once and for all, permitting us to finally make the leap home (oh boy!).  


In the last 3 days judges suppressed 2 DWI blood tests; 1 under the IC law, another where cops just asked for consent...

Posted by Ramsay Law Firm, PLLC on Tuesday, February 16, 2016

Bernard Brief Bank: Adding Amicus Arguments II

In case you didn't already know, the United States Supreme Court is set to determine whether or not Minnesota's DWI laws are constitutional. The highest Court accepted review of three cases - here they are, with hyperlinks to the Supreme Court docket for each case:


Bernard v. Minnesota (14-1470): is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?


Birchfield v. North Dakota (14-1468): Is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?


Beylund v. North Dakota (14-1507): Is it constitutional for a state to claim that a driver "consented" to a warrantless search when that driver was threatened with the crime of refusal?



We'll be releasing the briefs filed in these cases over the course of the next week or so. Along with the three "merits" briefs we previously posted, five (not four) amicus briefs were filed. Locally, the Minnesota Society for Criminal Justice and the Minnesota Association of Criminal Defense Attorneys (MSCJ/MACDL) filed briefs. Nationally, they were joined by the DUI Defense Lawyers Association (DUIDLA), the National College for DUI Defense (NCDD) the Downsize DC Foundation (DDCF), and the American Civil Liberties Union (ACLU).

Here are the last three amicus briefs: 

- Brief of Amicus Curiae National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL)

- Brief of Amicus Curiae American Civil Liberties Union (ACLU)

-Brief of Amicus Curiae Downsize DC Foundation (DDCF) et al. 

Bernard Brief Bank: Adding Amicus Arguments

In case you didn't already know, the United States Supreme Court is set to determine whether or not Minnesota's DWI laws are constitutional. The highest Court accepted review of three cases - here they are, with hyperlinks to the Supreme Court docket for each case:

Bernard v. Minnesota (14-1470): is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?
Birchfield v. North Dakota (14-1468): Is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?
Beylund v. North Dakota (14-1507): Is it constitutional for a state to claim that a driver "consented" to a warrantless search when that driver was threatened with the crime of refusal?
We'll be releasing the briefs filed in these cases over the course of the next week or so. Along with the three "merits" briefs we previously posted, four amicus briefs were filed. Locally, the Minnesota Society for Criminal Justice and the Minnesota Association of Criminal Defense Attorneys (MSCJ/MACDL) filed an amicus brief. Nationally, they were joined by the DUI Defense Lawyers Association (DUIDLA), the National College for DUI Defense (NCDD) the Downsize DC Foundation, and the American Civil Liberties Union (ACLU).
Here are the first two amicus briefs:
- Brief of Amicus Curiae Minnesota Association of Criminal Defense Lawyers (MACDL) and Minnesota Society for Criminal Justice (MSCJ)
- Brief of Amicus Curiae DUI Defense Lawyers Association (DUIDLA) 
In the interests of full disclosure, Dan Koewler of Ramsay Law Firm authored the brief submitted by DUIDLA and is the Chairman of the Amicus Committee for MACDL. Charles Ramsay of Ramsay Law Firm is a member of the Amicus Committee for DUIDLA. Both Dan and Chuck are members of all three organizations. 

Bernard Brief Bank: Keeping You Updated

In case you didn't already know, the United States Supreme Court is set to determine whether or not Minnesota's DWI laws are constitutional. The highest Court accepted review of three cases - here they are, with hyperlinks to the Supreme Court docket for each case:

Bernard v. Minnesota (14-1470): is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?

Birchfield v. North Dakota (14-1468): Is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?

Beylund v. North Dakota (14-1507): Is it constitutional for a state to claim that a driver "consented" to a warrantless search when that driver was threatened with the crime of refusal?







The briefs in support of the Appellants (Bernard, Birchfield, and Beylund) have already been filed, as have the briefs filed by several amicus curiae ("Friends of the Court," attorneys love using Latin phrases).

Respondents (the States of Minnesota and North Dakota) along with their fellow amici will be filing their briefs between March 15 and March 22.

We expect oral arguments to be held in Washington, D.C. sometime in April.

We expect a decision in June

And of course, there is one new question . . . what will be the impact of the recent passing of Justice Scalia on the cases scheduled for this term


We'll be releasing the briefs filed in these cases over the course of the next week or so. Along with the three "merits" briefs, four amicus briefs were filed. Locally, the Minnesota Society for Criminal Justice and the Minnesota Association of Criminal Defense Attorneys (MSCJ/MACDL) filed an amicus brief. Nationally, they were joined by the DUI Defense Lawyers Association (DUIDLA), the National College for DUI Defense (NCDD) the Downsize DC Foundation, and the American Civil Liberties Union (ACLU) (note that Dan Koewler was the author of the DUIDLA brief).

Here are the "merits" briefs:

Bernard v. Minnesota

Birchfield v. North Dakota

Beylund v. North Dakota

Check back often, we'll be posting the rest of the amicus briefs soon (along with some analysis)

It's Official: Bernard Does NOT Apply to Blood and Urine Tests

The dismantling of an unconstitutional statutory scheme is, evidently, a slow process.

As of Monday, we are one small step closer to constitutional fidelity. In its unpublished opinion in State v. Thach, the Minnesota Court of Appeals acknowledged that the search-incident-to-arrest exception does not apply to blood and urine tests:

In Trahan, this court held, based on the state’s concession, that Bernard does not apply to a blood test and that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine. Similarly, in Thompson, this court held that Bernard does not apply to a urine test and that a warrantless urine test cannot be justified by the search-incident-to-arrest doctrine. Collectively, Trahan and Thompson compel the conclusion that, in Thach’s case, the administration of a warrantless blood test or a warrantless urine test would not have been a valid search incident to his arrest.

This conclusion logically follows from the Court's rulings in Trahan and Thompson, so why blog about it?

Because every small step matters. In State v. Bernard, the Minnesota Supreme Court deliberately took no position on the application of its novel interpretation of the search-incident-to-arrest exception to blood and urine tests.

[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.

The Court of Appeals' decision in Thach takes a position on the issue.

Because the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach had a fundamental right to refuse to submit to both chemical tests.

Even this small step is a step in the right direction.

What can we expect next from Minnesota appellate courts? I'd like to see the elimination of the "as applied" modifier in DWI test refusal cases. These constitutional principles apply to all warrantless blood and urine tests in the implied consent context. The test refusal statute is unconstitutional on its face.

TNT - Get A Handle On The Current Explosion In Constitutional DWI Challenges in Minnesota

The constitutionality of Minnesota's DWI laws have never been more uncertain. The United States Supreme Court is going to decide if Minnesota's DWI Test Refusal Law is unconstitutional. The Minnesota Court of Appeals already ruled that you cannot charge a driver for refusal if they refuse a blood test or a urine test.

Some law enforcement agencies have stopped using blood and urine tests entirely; other counties have so few breath testing DataMaster DMTs that they don't have much of a choice but to demand urine or blood samples.

Sometimes law enforcement obtain a warrant before a blood or a urine test; other times they don't; in almost every case, they tell the driver they will be charged with the crime of refusal even when the officer knows full well that such a charge would be unconstitutional.

What's the current status of DWI law in Minnesota, besides "confusing?" Does it matter what test is offered by law enforcement, and is there a difference in defending a case where the driver submitted to a test versus refused to submit to a test? How do you raise these challenges in court (or try and convince a judge to put your case on hold until the Supreme Court provides Minnesota with some much needed guidance?)

We'll answer all these questions and more in our upcoming CLE Webcast (sponsored by the folks over at MinnCLE). We'll go live tomorrow, Tuesday, January 25, 2016 at 2:00 p.m. There will even be time allotted for answering questions.

If you're even thinking about handling a DWI case in 2016, this is the one CLE you can't afford to miss. Sign up by clicking on this link right here. (MinnCLE provides a discounted rate for those who are MSBA members, or those of you who have a Season Pass . . . which, if you had a Season Pass, you would already know).

Chuck Ramsay Interviewed By Minnesota Lawyer Regarding The Bernard Case

In the wake of the United States Supreme Court's decision to review DWI Test Refusal law, the nation's attention is being focused squarely on the state of Minnesota . . . and those attorneys who are closest to the fight. Minnesota Lawyer, the premiere legal publication for our state, interviewed Chuck Ramsay to get his opinion on what the possible impact will be for Minnesota now that the State v. Bernard case is going to be ruled upon by the highest court in America. 

Here's what Mr. Ramsay had to say (the full article is behind a pay wall, and is likely only accessible by attorneys). 

Defense attorney Chuck Ramsay agreed the potential impact is hard to overstate.

“It could be tremendous because, with a handful of exceptions, it would affect every single DWI case in Minnesota,” said Ramsay, who wrote an amicus brief when Bernard went before the Minnesota Supreme Court. “I can’t think of any other crime, except for the petty misdemeanor of speeding,  that affects so many citizens. I think this is unparalleled.”

Mr. Ramsay went on to add:

“The consensus in the defense community is that the U.S. Supreme Court took these cases to overturn them,” Ramsay said, referencing Bernard and the two companion cases out of North Dakota. “Because only a handful of states criminalize a driver’s refusal to submit to warrantless search, we don’t think it’s likely that the U.S. Supreme Court just wants to pat Minnesota and North Dakota on the back and say, ‘Hey, you’re doing a great job of upholding the United States Constitution!’”

We've been at the forefront of every legal challenge to Minnesota's Test Refusal law for almost a decade, and will continue to bring you all the relevant news and developments on this issue, from now until the Supreme Court issues their decision (likely in early June of 2016).

Until then, keep checking back regularly - when we're not providing breaking news, we'll still be providing legal commentary and opinion on what the future may hold -- and how to capitalize on future developments today. And if you've been charged with a recent DWI (even if you submitted to a test) the best thing you can do for yourself is to give us a call . . . sooner rather than later. 

Will The United States Supreme Court Review Minnesota's DWI Test Refusal Law?

Unless this is the first time you've ever visited our blog, you're undoubtedly aware that one of the hottest topic in the area of DWI law is Minnesota's DWI Test Refusal law, which effectively makes it a crime to refuse to submit to a warrantless search. You're probably also aware that under the current state of the law, it is unconstitutional to charge someone with test refusal if they refuse a blood test, but still constitutional if they refuse a breath test (guess which test is being offered most?).

The constitutionality of Minnesota's Test Refusal law is being presented to the United States Supreme Court in the case of State v. Bernard (and several other appeals from both Minnesota and North Dakota, which also has a test refusal law), and SCOTUS may tell us that they are accepting review as soon as this coming Monday

Here's the update: the highly prestigious SCOTUS Blog just listed the Bernard petition as one of their "petitions to watch." Here's what they had to say about the slew of test refusal petitions being presented to the Supreme Court:

Next, let’s kill thirteen birds with two (three?) stones. Up for consideration last Friday were a coven of cases all presenting the same question: whether, in the absence of a warrant, a state may make it a crime for someone to refuse to take a chemical test to detect the presence of alcohol in his blood. The two lead cases in the group – Bernard v. Minnesota14-1470, and Birchfield v. North Dakota14-1468 – challenge laws from Minnesota and North Dakota (respectively), which are among the thirteen states that make it a crime to refuse a test for blood-alcohol content. The petitioner inBernard, who was arrested on suspicion of drunk driving after he got his truck stuck in a river (although the officers likely had probable cause to believe he was intoxicated based solely on the fact that he’d been boating), was later charged with first-degree test refusal which, in Minnesota, carries a mandatory minimum sentence of three years’ imprisonment (!). Bernard argued that imposing criminal penalties for refusing to submit to a warrantless breath test violated the Fourth Amendment, but a divided Minnesota Supreme Court disagreed, reasoning that a warrantless breath test would have been reasonable in Bernard’s case as “a search incident to [his] valid arrest.” Bernard claims (not without force) that this ruling is “shockingly wrong,” and “untethers the search-incident-to-arrest exception . . . from [its] rationale.” The petitioner in Birchfield failed a field sobriety test administered after he drove his car off the road, and similarly refused to submit to a chemical blood-alcohol test. The North Dakota Supreme Court affirmed Birchfield’s conviction on the grounds that first, attaching criminal penalties to test refusal in this context is, as a general matter, reasonable; and second, that the entitlement to drive may be conditioned on the driver’s “deemed agreement to consent to a chemical test.” The Birchfield petition asks the Court to grant review and consolidate it with Bernard. “Alternatively,” the petition continues, “the Court should grant review in Bernard and hold the petition in this case pending disposition of that matter.”

If you had any notion that this issue arises infrequently, there are ten other cases from Minnesota or North Dakota lined up that raise the same issue, which we list here to demonstrate the diversity of surnames in the Upper Midwest: Manska v. Minnesota14-9861Isaacson v. Minnesota15-5315;Mawolo v. Minnesota15-5307Washburn v. North Dakota14-1469Baxter v. North Dakota15-243Beylund v. North Dakota14-1506Harns v. North Dakota14-1512Beylund v. Levi14-1507;Culver v. Levi14-1508; and Wojahn v. Levi15-129. From slightly to the south and east comesGaede v. Illinois14-10423, which presents a similar issue. Illinois does not criminalize a person’s refusal to submit to a chemical test, but evidence of refusal is admissible “in any civil or criminal action or proceeding arising out of the acts alleged to have been committed while the person is under the influence.”

Update: Minnesota Supreme Court Accepts Review Of Minnesota DWI Test Refusal Law

We've got more developments to report regarding whether or not Minnesota's DWI Test refusal law is constitutional. In a not-so-surprising turn of events, the Minnesota Supreme Court just granted review of the Trahan case, and set a briefing schedule for the parties. You can follow the boring progress of the case here

If you don't recall, Trahan was the case where the Minnesota Court of Appeals concluded that our DWI test refusal law is unconstitutional. To be more specific, the test refusal law is unconstitutional when law enforcement try to get a blood sample - Trahan deals strictly with blood tests, while the previously-issued Bernard case decided that you can charge someone with refusal if they refuse a breath test.

Now, the Minnesota Supreme Court will decide if the refusal law can withstand constitutional scrutiny when blood tests are at stake.  We'll just add in conclusion that the unintentional timing of this is interesting - just this week the Hawaii Supreme Court reached the opposite conclusion that Minnesota reached in Bernard, and found that their own test refusal law was unconstitutionally coercive. 

To say that Minnesota's DWI law is unsettled at this point would be a massive understatement. As always, keep checking back here, and we'll keep you posted as to the latest developments. 

The Constitution Won!

Apologies for the terrible title, but we've got big news from waaaaaaay down south. The Hawaii Supreme Court just issued a decision that directly contradicts the recent Minnesota decisions in State v Bernard and State v. Brooks. If you recall, the Minnesota Bernard decision concluded that Minnesota's DWI test refusal law is constitutional, with the additional conclusion that DWI breath tests are not even protected by the Fourth Amendment warrant requirement. That case is currently sitting with the United States Supreme Court. Previously, the Brooks decision concluded that it is not coercive to tell a driver that they are required by law to submit to a DWI test - even after being threatened with a crime, drivers are still deemed to have "freely and voluntarily consented" to testing in Minnesota. 

That's the old news; here's the new news. In Hawaii, the recently-issued Won case stands for the exact opposite - there, the Hawaii Supreme Court concluded that DWI breath tests are protected by the Constitution, and that it is unconstitutionally coercive to make it a crime to refuse to submit to a breath test. The concurring opinion wanted to go even farther, and strike down the entire refusal law as being patently unconstitutional

Two states, both with a DWI test refusal law on the books. One of those states found the law constitutional, the other found it applied unconstitutional pressure on drivers . . . and it took Hawaii's highest court all of one paragraph to reject pages and pages of analysis performed by Minnesota's highest court. 

The Hawaii decision is a gem of logic and legal reasoning, but you don't have to take our word for it, you can read it yourself. 

So, which state got it right? That's the big question, and it's a question that can only be answered by the United States Supreme Court. DWI law has never been more unsettled than it is right now - stay tuned. 

Supreme Court to Discuss Bernard Appeal on December 4

We've got a small update to provide regarding the ongoing state of the law regarding Minnesota's Test Refusal Law. Mark December 4, 2015 on your calendars - the day that the United States Supreme Court is going to hold a conference on several Minnesota appeals. 

Currently, there are several Minnesota cases that are asking the United States Supreme Court to review the constitutionality of Minnesota's DWI Test Refusal Law. The one most people are familiar is the Bernard case - where the Minnesota Supreme Court found that breath tests were not protected by the warrant requirement because they were "searches incident to arrest." Bernard is now set for conference on December 4. 

We discussed two other petitions for review that were filed around the same time as Bernard - the Issacson and Manska cases (both are also test refusal cases). Both of these cases are also set for December 4.

What does this mean? It means that we'll likely know if SCOTUS intends to accept review of Minnesota's DWI Test Refusal Law some time before Christmas. 

Those Who CAN Do, Also Teach

Good attorneys - the ones who want to do more than take your money, the ones that actually want to (and enjoy) fighting for you, are constantly learning the latest and greatest legal tactics to help their clients win. Now, nobody has unlimited time to learn, so good attorneys will be very picky when it comes to who they go to for their continuing education.

You know the old saying, "those who can't do, teach?"  (sometimes followed by, "and those who can't teach, teach gym"). Well, I think it's a stupid saying, regardless of the context, but it's certainly stupid when it comes to continuing legal education. The best and brightest attorneys are at the top of their game (putting their clients in just as favorable position), and it is those attorneys that are often called upon to share their hard-won knowledge and expertise with other attorneys.

The attorneys at Ramsay Law Firm are always working to improve themselves through education . . . and sometimes that means stepping up and doing the educating. We recently announced that our own Charles Ramsay joined the faculty of the prestigious, nationwide National College for DUI Defense. This weekend, instead of spending time with his family, he'll be teaching the best DWI defense attorneys from around the country on how to successfully attack the science behind breath testing

After this weekend, Chuck will be back in Minnesota, continuing to use what he taught to attack the breath tests in our client's cases. And these attacks are picking up some serious steam - we've uncovered even more information calling Minnesota's breath testing scheme into serious question. Those challenges are going to give us the edge for all of our clients - and in DWI defense, it can be the edge needed to get a successful resolution to the case.

Does your attorney teach for the National College of DUI Defense? Wouldn't you rather that he or she did?

The Technicalities (and Presumptions) of DWI: Part II

We previously discussed one of the most common misconceptions held by people who were arrested for driving while impaired - the future client who calls our office and feels obligated to keep reminding us that they "know" that they are "technically guilty of DWI" but . . . but . . . but. We debunked the myth of "technically guilty" drivers in that prior blog, and today we're going to talk about the other common misconception, namely, that the only way to "beat" a DWI is by taking advantage of some once-in-a-lifetime "technicality."

I shudder whenever a future client talks about "technicalities" because it shows a serious misunderstanding of what our constitutional rights really stand for. When someone says, "I want to know if it is possible to get off on a technicality" I secretly cringe, before trying to explain that what they meant to say is "did the government do its duty to uphold my constitutional rights?" 

That's not just mincing words - it's the cornerstone of our free, democratic society. Now, there are always scientific challenges to raise in DWI cases (the validity, accuracy, and reliability of the breath test, for example) and there are also specific challenges to the facts of many cases (would a jury agree that the person in actual physical control of the vehicle, or that the field sobriety tests were properly conducted) but many of the best defenses are constitutional challenges ("technicalities" that are anything but).

The Constitution affects DWI investigations more so than almost any other crime. You've got the initial seizure of the individual, which implicates the Fourth Amendment. The Fifth Amendment right to remain silent comes into play regularly (and often earlier in the encounter than most people think). You've got a constitutional right to counsel before you even submit to a blood, breath, or urine test, and a due process right to obtain an independent test afterwards. The test itself is a search protected by the Fourth Amendment warrant clause (a hotly contested topic to this day), and this is just scratching the surface of the dozens of constitutional challenges that have successfully been used to get DWI cases thrown out of court. 

When a law enforcement agent stops a driver without a reasonable suspicion of criminal activity, throwing out the case isn't due to a "technicality," it's a duty - our judges have a duty to protect the public from overzealous law enforcement agents - even if the driver was unequivocally intoxicated. When the government crime lab uses a fleet of breath test instruments that are unscientifically calibrated, improperly maintained, and are used to report grossly inaccurate and misleading results, suppressing those test results on Due Process grounds is not a "technicality," it's nothing more (or less) than a judge doing his or her duty to act as constitutional gatekeepers, each responsible for screening out blatantly unfair evidence. 

The "technicalities" of DWI defense don't arise once in a blue moon - they arise in almost every single case. It's probably once or twice a year that we come across a case where there is no way to raise a constitutional challenge to some aspect of a DWI case; 99% of the time, those challenges are plain to see, aching to be litigated, and able to be won. 

You are not "technically" guilty of DWI unless you plead guilty or lose your case at trial; and your attorney's job is to zealously attack every constitutional violation in your case to suppress illegally obtained evidence. That's not "winning on a technicality" that's just the benefit of living in a free, democratic society.

Hundreds of thousands of soldiers have died overseas defending our constitutional freedoms, and it would be absurd to fight with any less conviction when those freedoms are in need of defense at home


Following the Future: Minnesota's DWI Test Refusal Law's own Robert Zimmerman may have said it best when he noticed that "The Times, They Are A Changin'" It looks like the odds of the United States Supreme Court taking a careful look at Minnesota's decision to criminalize the act of DWI test refusal are going up by the day. We may soon see Minnesota's DWI test refusal law thrown out by the Supreme Court. 

Here's why: Earlier this year the Minnesota Supreme Court -- in a 4-3 decision -- decided that Minnesota's DWI test refusal law was constitutional, in the case of State v. Bernard. Bernard's attorneys promptly filed for further review by the United States Supreme Court, the first step along the road towards convincing the highest court in the land to find Minnesota's DWI law unconstitutional (which we've been arguing for a very long time). 

No action has been taken on Bernard's petition yet (the justices will review it in a conference within the next couple weeks). And everyone knows that the United States Supreme Court accepts very few cases for review (although there is a steady trend of the Court accepting more and more petitions). So the question is, "what are the odds that the Court will grant review of the Bernard decision?"

We recently uncovered a clue regarding this all-important question. Two DWI test refusal petitions to the Supreme Court, filed by pro se defendants (meaning they are representing themselves, never the best idea) were reviewed by the Court and led to an order for "Briefs in Opposition." This is a rare step, and the Court will not typically accept review of a case unless they have first ordered Briefs in Opposition.

The take away? At an absolute bare minimum, it means that there are several justices on the Supreme Court who have the issue of DWI test refusal on their radar, and are interested in reviewing the case. Otherwise, those two pro se petitions would have simply been denied. Instead, we've got some additional insight, and more reason to be optimistic that the Supreme Court will step in to reverse Minnesota's DWI laws in an even more dramatic fashion than they did back in 2013 in the Missouri v. McNeely decision. 

If the Supreme Court orders the State of Minnesota to file a Brief in Opposition to the Bernard petition, how will they respond? Will the State try to convince the Court not to accept review out of fear of how the Supreme Court will rule . . . or will they admit that the question is, at the very least, important enough to be presented and argued to the highest court in the land? I don't know the answer, my friend . . . as of right now, it's just blowing in the wind


UPDATE: For those who are really curious, here are the two decisions that spurred the Supreme Court to order Briefs in Opposition: 

State v. Issacson (MN decision) (SCOTUS docket)

State v. Manska (MN decision) (SCOTUS docket)

The DWI Suspect: Lady Liberty's "Red-Headed Step-Child"

The State of Minnesota—courts, cops, and legislators—provides more constitutional protection to convicted criminals than it does to drivers arrested under suspicion of drunk driving.

You read that right. Incarcerated, guilty beyond a reasonable doubt, violent criminals enjoy greater constitutional liberty than innocent-until-proven-guilty drivers suspected of driving while impaired.




Applicable Law

Minn. Stat. §§ 241.33 – .339

Corrections Exposure to Blood-Borne Pathogens

Minn. Stat. §§169A.20 (DWI)

169A.51 – .53   (Implied Consent)

Reason for blood testing

Blood may contain blood-borne pathogens

Blood may contain alcohol or substances

Health/Safety Risk

Blood-borne pathogens may be transmitted and may cause illness resulting in injury or death

Blood containing alcohol or substances may indicate impaired driving ability; impaired driving may cause accidents resulting in injury or death

Standard for seeking blood sample

Corrections employee must report “significant exposure”

Law enforcement initiates a traffic stop


Licensed physician must determine that “significant exposure” has actually occurred

Law enforcement makes determination of probable cause to arrest suspect under suspicion of DWI

Consent required?

Yes, voluntary, express, intentional consent

Implied by statute 

“Any person who drives, operates, or is in physical control of a motor vehicle … consents … to a chemical test of that person's blood, breath, or urine … when an officer has probable cause to believe the person [has been driving while impaired]”

Note: By driving on Minnesota roads, drivers impliedly “consent” to take a test; "consent" can be unintentionally, unknowingly, unwillingly given, through action (submitting to testing)

Language in the statute

“[T]he correctional facility shall obtain consent from the inmate before collecting a blood sample for testing for blood-borne pathogens”

“The consent process shall include informing the inmate that the inmate may refuse to provide a blood sample and that the inmate's refusal may result in a request for a court order … to require the inmate to provide a blood sample”

“[A]t the time a test is requested, the person must be informed: that Minnesota law requires the person to take a test … [and] that refusal to take a test is a crime…”

Note: Any course of action other than submitting to a test--even exercising the constitutional rights guaranteed by the Fifth Amendment (right to remain silent, no compelled self-incrimination)--is the crime of test refusal

What happens if the subject does not consent to give a blood sample?

Inmate does not take a test, no test is performed, and there are no penal or civil consequences

Driver does not take a test and is charged with DWI and test refusal


Driver submits against her will to avoid the criminal charge of test refusal, and the court later finds that she “voluntarily consented” under the totality of the circumstances (in Minnesota courts submission = consent)

Due process protections

“A correctional facility or a corrections employee may bring a petition for a court order to require an inmate to provide a blood sample for testing for blood-borne pathogens. … The correctional facility shall serve the petition on the inmate three days before a hearing on the petition." The court may order the inmate to give blood if "the court finds a compelling need for the test results. ...[T]he court shall weigh the need for the court-ordered blood collection and test results against the interests of the inmate, including, but not limited to, privacy, health, safety, or economic interests

“It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine”

Note: Law enforcement's unofficial policy--and officers' standard practice--is that no search warrant is required for DWI suspects, despite the availability of telephonic warrants

Right to counsel?

“[T]he inmate may arrange for counsel in any proceeding”

“[T]he person has the right to consult with an attorney, but … this right is limited … it cannot unreasonably delay administration of the test”

Can test results or test refusal be used in civil or criminal proceedings?


The test results may not be used as evidence in any criminal proceedings or civil proceedings, except for procedures under sections 144.4171 to 144.4186

Yes, both

Civil legal consequences


If “the person refuse[s] to submit to a test, the commissioner shall revoke the person's license [without a hearing]… even if a test was obtained ... for a period of not less than one year”

If a person fails a test (0.08 BAC or higher), the commissioner shall revoke the person's license [without a hearing] "for a period of 90 days"




Criminal legal consequences


First time DWI is a misdemeanor:

Up to 90 days imprisonment, up to $1,000 fine, or both

First time test refusal is a gross misdemeanor:

Up to one year imprisonment, up to $3,000 fine, or both

Convictions and revocations will be used to enhance future criminal and civil DWI-related offenses


Continue Reading...

Will the Test Refusal Law Fall on Its Face?

Once again, we can see that the legal landscape is reaching one of those tipping points, where everything we thought we knew is turned on its head.

The United States Supreme Court just issued a decision, in California v. Patel, that should prompt those who believe Minnesota's test refusal law is constitutional to stop what they're doing, sit up, and listen.  

The bottom line is: We can and will keep making the argument that Minnesota's test refusal statute is unconstitutional until we win.

California v. Patel stands for two basic principles:

1.   Just like laws that involve other constitutional rights, state laws that involve the Fourth Amendment are subject to facial challenges. By "facial", the Supreme Court means that some laws are so blatantly unconstitutional as written--regardless of any possible fact scenario to which they might apply--that no court could enforce the law without violating the Constitution. The Court found the law in Patel, which authorized warrantless searches of hotel registry documents on demand, to be facially invalid.

2. SCOTUS said (again!) that it is unconstitutional for the state to make it a crime to refuse to submit to a warrantless search. To put things in perspective:

In Patel, the statute struck down by the Court made it a crime for hotel owners to refuse to permit a search of the hotel's guest registry: who checked in, how long they stayed, how they paid for the room, etcetera.

Here in Minnesota, the test refusal statute makes it a crime for drivers suspected of DWI to refuse to permit a search of their body: the chemical composition of their blood, breath, and urine. 

The Constitution--on its face--provides far more protection for individuals' privacy and bodily integrity than it does for the comings and goings of guests in a hotel database.

We'll post soon about our recent efforts to bring Minnesota's test refusal law before the federal courts for review - but the takeaway message today is that Minnesota's DWI test refusal law may soon fall on its face.

Might Bernard Have a Silver Lining?

Every cloud has a silver lining, they say.

Bernard is a heck of a cloud, but we may have caught a glint of silver in a district court opinion this week.

It appears that Bernard's silver lining may be a return to the universal voluntariness of consent analysis, and the end of the DWI consent analysis double standard. (Follow these links to conduct your own comparison of non-DWI consent analysis and DWI consent analysis.)

In a district court order filed on Monday, the court ultimately used Bernard to validate the warrantless breath test, but the court found no voluntary consent:

The consent exception is not applicable in this case. Although Defendant ultimately submitted to the test, he made clear that he was not doing so voluntarily, as he believed his constitutional rights were being violated. As such, the Court must consider whether another exception to the warrant requirement applies.

Just like that.

Did we mention that Bernard filed his Petition for Certiorari with the U.S. Supreme Court on Monday? Bernard may go down as the case that restored meaningful consent. Silver lining indeed!


"Your rights are no good here."

I think I know how the drafters of Magna Carta felt.

I was on call this weekend, taking late night calls from drivers arrested for DWI. It’s common for an arrestee to ask,

How can the police do this? I thought I had rights under the Constitution. They’re telling me that I have to give them blood or urine because it’s a crime not to. They won't even honor my right to remain silent. I don’t understand.

I think to myself, "Yeah, but those rights are no good here."

I tell the arrestee,

You’re right. In most other states you would have the right to a warrant, and you could remain silent, or refuse to give evidence, without automatically being charged with another crime. 

Unfortunately, in the DWI context, Minnesota isn't like other states. Here, in your situation, it is a crime to exercise those rights. In Minnesota, the only way to not incriminate yourself for the crime of test refusal is to surrender your right to a warrant from a judge, and submit to a warrantless search.

Without fail, after the call, I sit at my kitchen table and think, "Are we officially back at square one?" Have we regressed to pre-Magna Carta times?

The constitutional right we value the most—no deprivations of life, liberty, or property without due process of law—began with Magna Carta. According to Chief Justice John Roberts, Magna Carta “laid the foundation for the ascent of liberty” and constitutional democracy.

In a nutshell, 800 years ago in England, King John was a tyrant. He took property and inflicted punishment without rhyme or reason because, as he famously said, “The law is in my mouth.”

On June 15, 1215, English barons presented King John with a written ultimatum, Magna Carta. They demanded legal certainty and fairness, a rational system of common laws, and the guarantee that judgment and punishment would be meted out by their peers based on evidence, and not arbitrarily from the throne. King John agreed to the barons' terms (for about 3 months).

Magna Carta’s 800th anniversary couldn’t have come at a better time for Minnesota. I'm looking forward to being able to tell arrestees, "your constitutional rights are good here," and then going back to sleep.

Your Voluntary Consent Is Required

For DWI suspects in Minnesota, the right to consult with counsel has no bearing on the voluntariness of their “consent” to give blood, breath, or urine for testing.

Drivers have a constitutional right to refuse to consent to a warrantless search, and a statutory right to refuse to permit a chemical test, but lawyers can't advise drivers to exercise these rights, because doing so is a crime, for the client and the lawyer.

Under Minnesota law: Every person who commits or attempts to commit, conspires to commit, or aids or abets in the commission of any act declared in [Minnesota Chapter 169A - Driving While Impaired] to be an offense, whether individually or in connection with one or more other persons or as a principle, agent, or accessory, is guilty of that offense, and every person who falsely, fraudulently, forcefully, or willfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this chapter is likewise guilty of that offense.

Minn. Stat. § 169A.78.

It gets worse (or better, if you’re a prosecutor). When a Minnesota DWI suspect tells the police:

"There is no way I will voluntarily consent to this test without a warrant! I know my rights!"

her attorney is ethically bound to advise her to submit to the warrantless search against her will. Any other advice would be a violation of Rule 1.2(d) of the Minnesota Rules of Professional Conduct:

“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal ... .” 

Sorry drivers, in Minnesota, your voluntary consent is required.

An Open Letter to the Minnesota Legal Community

Dear 32nd State,

In Missouri v. McNeely, the United States Supreme Court made it unequivocally clear that chemical tests in the DWI context are not exempted from the Fourth Amendment warrant requirement by the search-incident-to-arrest exception. 

Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. 

Missouri v. McNeely, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).

There is no shame in making a mistake, so long as it is corrected at the earliest opportunity. I trust that this error will be corrected post-haste.

Yours truly,

The Constitution of the United States of America

Supreme Law of the Land

Beating DWIs with Science

Winning cases for our clients is nothing new, but this week we won a few based on good ol’ science. Unlike previous wins based on constitutional issues, this week we prevailed twice by exposing law enforcement errors that rendered scientific test results unreliable. Science requires precision, and our training gives us an edge when it comes to spotting irregularities in DWI test procedures.

DWI Breath Test Refusal. We’ve been at the forefront of the constitutional push-back against the crime of test refusal for years. District court judges know coercion when they see it, and we make sure they understand the Catch-22 our clients face: submit to a warrantless search or commit the crime of refusal. (In Minnesota, refusal to take a test is a gross misdemeanor crime plus automatic license revocation for at least one year.) The majority opinion in State v. Bernard has left us all—attorneys and judges—with relatively tied hands until the United States Supreme Court takes a look at the issue. (We’ll let you know when that happens.) Fortunately for our clients, when one door gets blocked, we find another way out.

This week we beat a DWI test refusal charge by using our expertise in Minnesota’s breath testing protocol. Dan and I are both certified, by the device manufacturer, as operators and supervisors of the DataMaster DMT breath testing device (“DMT”). I am also a certified Intoxilyzer 5000 (PBT) operator, and a graduate of the prestigious Borkenstein Institute (open to government employees only).

We beat the refusal charge this week because we understand the variables involved in DMT breath testing. Under current law, simply providing a breath sample isn’t enough; drivers have to provide two samples, and the DMT has to deem them both “sufficient.” Sometimes a driver simply can’t blow long enough and hard enough to meet the machine’s requirements. That counts as test refusal.

There are other reasons the machine won’t accept a driver’s breath sample. One example is when the DMT detects “mouth alcohol,” which is often associated with gastric reflux (“GERD”) (mouth alcohol artificially inflates test results because it shows up on the test, but it has no relation to impairment because mouth alcohol has not been absorbed into the blood).  When the DMT detects a declining alcohol concentration during the collection of the breath sample (indicative of the presence of mouth alcohol) it reports “INVALID SAMPLE.” (See page 105 of the Minnesota DMT Operator Manual.)

In the refusal case we beat this week, our client blew into the DMT breath test machine, and the machine reported “INVALID SAMPLE.” The DMT operator confused this message with “DEFICIENT SAMPLE” – a common mistake among officer operators – and charged our client with the crime of test refusal (in addition to the DWI charge). Due to a previous qualified driving incident, our client was charged with second degree DWI, and the State forfeited his truck.

When our client came to us, he had no license, no truck, and was facing prison time. We challenged all of it: the license revocation, the criminal charges, and the forfeiture. It didn’t happen overnight, but we’re happy to report that the State returned his forfeited truck, and finally, this week, we got our client his driver’s license back, and the State dismissed the DWI and test refusal charges in exchange for a plea to careless driving.

In this case, our extensive breath testing training was crucial to our success. In DWI law, science is critical, and we’ve got the knowledge necessary to spot and expose errors that help us win our clients' cases.

DWI Urine Test. We’ve successfully challenged urine testing in Minnesota for years. Minnesota is one of the few states that use first-void urine alcohol testing (F-VUAT). Despite the State’s lax standards for urine sample collection, we still find case-changing mistakes in some of our clients’ cases.

When we say lax standards, we’re not kidding. There is only one administrative rule for urine testing: “Any person may administer a urine test.”  Minnesota statutes provide no requirements at all. Fortunately, our courts recognize the need for at least some minimum scientific safeguards to ensure the reliability of urine test results.

For example, urine testing kits contain a visible, white powder preservative that inhibits fermentation. Without the preservative, glucose in the urine can ferment. Days, or even weeks, can pass between collection and testing of a sample. Fermentation increases the amount of alcohol in the sample, which leads to artificially high, inaccurate test results.

In the urine case we beat this week, the Minnesota Bureau of Criminal Apprehension lab reported our client’s alcohol concentration at over .20. We reviewed the video and audio recordings of our client’s encounter with the police, and we scoured the police and lab reports. In one report the arresting officer detailed the lack of cooperation shown by our client. Deep within that narrative, the officer noted that at one point our client filled and then completely dumped out the urine collection cup before refilling it. Bingo. The officer was too caught up in recording our client’s attitude to realize that his note cast doubt on the reliability of the test results. When our client dumped out the urine, the preservative, presumably, went with it. We confronted the State with science, and the State agreed to flush the test, and dismiss the case without a hearing.

Perhaps you’re thinking,  “Yeah, but can I beat my DWI case?”

You’re not alone; most people—even other DWI attorneys—see a number higher than .08 and they give up.

We get it. The double whammy of implied consent and DWI proceedings is overwhelming. It’s easy to get discouraged.

But, as Wayne Gretzky says, “You miss 100% of the shots you don’t take.”

We take every shot.

We know the science, and we use it to help drivers like you.

For a chance to beat your DWI, call us now.

"Consent" in the Wake of State v. Brooks

Right now in Minnesota, courts' interpretation of DWI law is all over the map – the law is uncertain, with more gray areas and questions than black-and-white answers.

Is "consent" to search relevant in the DWI context in Minnesota?

Is actual consent possible when "consent" is implied by law?

Do drivers have a "right" to refuse a test when exercising that "right" is a crime (test refusal)?

Does the Fourth Amendment even apply to DWI searches in Minnesota?

Currently, once a driver has been arrested for DWI in Minnesota there are only two possible outcomes: submit to a warrantless search (blood, breath, or urine), or get charged with a crime for refusing to submit. There doesn't seem to be much consent involved. And this appears to apply not only to drivers who have consumed alcohol; the same take-the-test-or-break-the-law "choice" must also be made by drivers who are simply driving while taking medication as prescribed

We weren’t kidding when we said there are more questions than answers. We depend on judges to come up with the answers, but we can certainly pinpoint the source of all the questions and confusion: the legal fiction that our Implied Consent Law (which governs license revocations) and DWI law (which puts drivers in jail) are separate from each other.

The Minnesota legislature has decided—under the Implied Consent Law—that in exchange for their driving privileges, all drivers arrested for DWI impliedly “consent” to submit to a warrantless search (chemical test of blood, breath, or urine). If a driver refuses to take a test, or if the driver takes and "fails" the test (.08 or higher), the State takes away the driver's license.

The legislature has also decided—under the DWI statute—that driving with an alcohol concentration of .08 or higher is a criminal offense punishable by jail time.

The problem is that the legislature “crossed the streams” of the DWI and Implied Consent laws when it made it a crime, under the DWI law, to refuse to take a test under the Implied Consent Law. Together, the laws make it illegal for an arrested individual to refuse to submit to a warrantless search for criminal evidence.

This is a classic Catch-22 for the driver. By claiming the laws are still separate, the state is able to use a driver’s implied consent to take a chemical test (in exchange for a driver’s license) simultaneously as irrevocable "consent" to a warrantless search for criminal evidence.

Now, we aren't judges, but in our opinion this seems unconstitutional, for several reasons. First and foremost among them being the fact that “consent,” by definition, is permission freely and voluntarily given. Permission can always be withdrawn. If permission can’t be withdrawn (without incurring criminal penalty), it’s not voluntary, and therefore, it's not consent. 

It wasn't that long ago that Minnesota judges agreed with us:

“The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense[,]” Prideaux v. Minnesota, 1976, and "[a]n officer has a right to ask to search and an individual has a right to say no.” State v. George, 1997.

However, since 2013, in Missouri v. McNeelywhen the United States Supreme Court clarified that the Fourth Amendment warrant requirement does indeed apply to DWI tests (again, blood, breath, and urine), Minnesota courts have issued a series of contradictory decisions – and there doesn't appear to be any end in sight.

For instance, in State v. Brooks (2013), the Minnesota Supreme Court noted that “[t]he Minnesota Legislature has given those who drive on Minnesota roads a right to refuse the chemical test[,]” and “by reading the implied consent advisory police made clear to [the driver] that he had a choice of whether to submit to testing.” 

But this analysis depends on the legal fiction that the implied consent and DWI laws are separate. The statutory reality is that under the DWI statute, “[i]t is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under [the Implied Consent Law]," even though the Implied Consent Law says that “[i]f a person refuses to permit a test, then a test must not be given.”

Can a single act, such as test refusal, be both a right and a crime at the same time?


Wanna know our answer?


DWI suspects have the same constitutional rights as everyone else.

1. Collection and chemical testing of blood, breath, and urine are searches under the Fourth Amendment that require a warrant or consent; 

2. Submission to a chemical test required by law, in order to avoid committing a crime by refusing to submit, is not consent; and

3. It is unconstitutional to criminalize refusal to submit to a warrantless search.

But we aren't judges, and according to case law, it appears that consent just isn't relevant in a post-Brooks world.

There is hope on the horizon . . .  We expect to see new developments in this area from our federal courts in the near future. Stay tuned – it may be a while before the fog clears, but we’ll be here to help you navigate DWI law until it does. 

This is the third post in our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In this series we discuss: 

1. The History of the Consent Exception to the Fourth Amendment Warrant Requirement

2. The Evolution of the Consent Search Doctrine 

3. Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks 

4. Consent as a Matter of Law: The Minnesota Court of Appeals and the Consent Exception to the Fourth Amendment

5. The Constitutional Implications of Minnesota’s New Standard for the Consent Exception to the Fourth Amendment

6. The Future of the Consent Search Doctrine

Medication Contraindication: Driving in Minnesota

Medication Contraindication: Driving in Minnesota

Do you take prescription medication? Approximately 70% of Americans do.

If your medication is classified as Schedule I or Schedule IIAdderall, Ambien, Codeine, or Klonopin, for exampleevery time you get behind the wheel of a car, you are committing the crime of driving while impaired. If arrested, you will lose your driver’s license, and proving that you are taking medication as prescribed by your doctor won’t help you get it back.

For this you can thank the Minnesota Court of Appeals for its recent decision in Dornbusch v. Comm’r of Pub. Safety.

In its decision, the Dornbusch court freely acknowledged that classifying medicationsbecause of their potential for abuse—was never intended to thwart their prescribed use by drivers. 

Remember, we’re not talking about street drugs or hardcore narcotics here. It is against the law to drive in Minnesota if any amount of certain medications people take every dayRitalin, Xanax, Vicodin, to name just a few—is present in your body.

But the Dornbusch court nonetheless held that when any amount of a Schedule I or II medication is found in a chemical test—even when the driver was taking the medication as prescribeda judge’s hands are tied. If the state has revoked your driver’s license for suspected DWI, a valid prescription will do nothing to help you get your driver’s license back.

Let me guess; this is the point where you, and many readers, are thinking, “Well, it’s only a crime if I get arrested while driving, and even if I get pulled over, I won’t be arrested for DWI, so I don’t need to worry.”

Think again. Law enforcement officers need only a minor traffic infraction to justify pulling you over. Once you’ve been stopped, an officer’s hunch, your bloodshot eyes, and an inability to stand perfectly still while balancing on one leg is all it takes to arrest you for DWI.

Coming up next: a recent example from the Court of Appeals of just how easy it is to find yourself under arrest for DWI.


Bernard Breakdown - Part One (The Good News)

 Ahh, Bernard. Where to begin?

For those of you who haven't read the Minnesota Supreme Court's decision in State v. Bernard, here's the bottom line:

After Bernard, it appears that the Minnesota law that makes it a crime to refuse to submit to a warrantless, involuntary breath test is not unconstitutional. That's not what we were hoping for, but it's not all bad.

Let’s start with the good news.

1. No more "hypothetical warrant" nonsense.

In one short paragraph, the Supreme Court dismissed the Minnesota Court of Appeals’ attempted revival of the long-dead “hypothetical warrant doctrine." Here's what they said:

The court of appeals’ analysis is contrary to basic principles of Fourth Amendment law. … [W]e refuse to embrace the rule that the court of appeals applied in this case [the hypothetical warrant doctrine].

Very clear cut, and very refreshing.

2. Bernard applies to breath tests only.

The Bernard majority limited its holding to breath tests, so when it comes to blood and urine tests, it certainly appears that the warrant requirement applies in full force. Again, here's what the Court had to say about blood and urine tests:

[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.

3. The two-justice dissent eloquently laid out a road map for reversing Bernard.

As the dissent points out, state court justices cannot cover their ears, shut their eyes, and “la, la, la…I can’t hear you” their way out of their duty to follow decisions of the Supreme Court of the United States on constitutional law. In Missouri v. McNeely, the U.S. Supreme Court definitively ruled that the potential loss of evidence due to dissipation of alcohol in the blood is not enough to justify an exception to the warrant requirement. The Bernard majority tried to get around McNeely by swapping one per se warrant exception for another one . . . and the dissent squarely called them out on it. Last time the Minnesota Supreme Court tried to circumvent the Constitution with a DWI exception, it only took the U.S. Supreme Court four years to shoot it down. How long will this new attempt last? It's hard to say . . . but let's look a little more closely at the dissent.

Dissent: Nice try with the search incident to arrest exception.

In general, the search incident to arrest exception allows the police to search a person and the area within the person’s reach for two reasons: to protect the police and preserve evidence. These two reasons have been the only justification for the exception since the judiciary created it.

The Bernard majority asserted that because the search incident to arrest exception allows police to search “a person,” extracting breath against a suspect’s will is no different from a pat-down for weapons or confiscation of contraband from a jacket pocket. Where the majority trips over itself is in its attempt to connect its definition of a breath test as a search of a person with either of the justifications--protecting police and preventing the destruction of evidence--that make the search incident to arrest exception reasonable.

Halitosis aside, a suspect’s breath presents no danger to the police, and there is nothing a suspect can do to destroy evidence of alcohol in the breath. But above all, nobody can forget that there is that binding federal precedent on this precise issue: Missouri v. McNeely determined that the natural dissipation of alcohol in the body is not enough to justify a categorical exception to a fundamental constitutional right. It was almost as if the U.S. Supreme Court envisioned Minnesota trying to create a new, flawed exception to the warrant requirement and tried to stop them before they got that far. If that was the case, they failed, in part because . . .

Dissent: The legislature can't criminalize the exercise of constitutional rights.

Finally, the Minnesota statute that criminalizes refusal to submit to testing does so regardless of the type of test refused. Therefore, with respect to blood and urine tests, Bernard is irrelevant. The majority itself admits (without explicitly stating it) that blood and urine tests still require a search warrant to pass constitutional muster, and suspects have the right to refuse any warrantless search the police need a warrant to legally conduct. Minnesota law criminalizes the exercise of that right. That is about as unconstitutional as it gets.

These are our first impressions of the Bernard decision. We'll go into greater depth in another blog post, fully dissecting the decision and its implications for the future (that post will get very legal-ly and wordy, so be warned - you'll want to bring your reading glasses). What we can say for certain right now is that it is highly unlikely that Bernard will be the last word on the constitutionality of Minnesota's test refusal law.

Stay tuned. We’re just getting started.


Bernard Opinion Released Today

Here it is, at last. The opinion we've all been waiting for: State v. Bernard.

According to our Minnesota Supreme Court:

1. Because a warrantless search of appellant’s breath would have been constitutional as a search incident to a valid arrest, charging appellant with violating Minn. Stat. § 169A.20, subd. 2 (2014), for refusing to take a breathalyzer in this circumstance does not implicate a fundamental right.

2. Because Minn. Stat. § 169A.20, subd. 2, is a reasonable means to a permissive object, it does not violate appellant’s right to due process under the United States or Minnesota Constitutions.

The Court of Appeals decision is affirmed.

Read the full opinion here.

Our legal analysis of the opinion is in the works (we've got some opinions of our own to share as well).

Check back later today for our complete Bernard breakdown, including what today's decision means for drivers and attorneys, including those with cases currently pending in Minnesota courts.

Breaking News: Minnesota Supreme Court To Issue Bernard Decision on Wednesday

We just received notice that the Minnesota Supreme Court will issue its potentially groundbreaking decision in State v. Bernard this upcoming Wednesday, February 11, 2015. In the Bernard case, the Court is being asked to decide whether it is constitutional for the government to criminalize an individual's refusal to submit to a warrantless (and thus presumptively illegal) search.

Want to know more?

You've got two days to watch the oral arguments presented in the case here.

You can read some of our speculation here.

We were given permission to file an amicus curiae brief in this case, and filed on behalf of the Minnesota Society for Criminal Justice and the Minnesota Association of Criminal Defense Lawyers, two very notable and worthy defense organizations in Minnesota.

Any further speculation on this decision is pointless at this point, as we'll have our answer in two days. With hundreds of cases on hold pending this decision, Wednesday is certain to be a very big day.

The Evolution of the Consent Search Doctrine

Series: The Evolution of the Consent Search Doctrine

As we mentioned in our previous post in this series, the consent search exception to the Fourth Amendment warrant requirement is a relatively recent, judicially-crafted doctrine. Tracing its evolution—or should I say, devolution—reveals a gradual but steady shift away from actual consent (as the right of every individual) toward “consent” as “any cooperation with law enforcement in the absence of extreme and obvious coercion.”
The consent search exception has devolved into a law enforcement tool used liberally and intentionally by the authorities to pressure or trick individuals into doing what they are told. 
Lest this generalization offend some readers, I offer the wise words of former Minnesota Supreme Court Justice Esther Tomljanovich, from the case of State v. George, written in 1997:
Our decisions in this case and in [State v.] Dezso represent what I believe will be an ongoing attempt to come to grips with the increasing use by state troopers and police officers of subtle tactics to get motorists and others to “consent” to searches. It appears state troopers and police officers are receiving training on getting “consent” to search, similar to the training sales people receive in getting people to agree to buy things they do not want. One technique is to ask the defendant a question along the following lines: “You wouldn't mind if I looked in the truck, would you?” If the person says “no,” the officer searches. Consumer protection laws provide some protection to consumers who, as a result of sales pitches from sales people, “consent” to purchase products they do not want. We are not dealing with vacuum cleaners in this case but with the liberty and privacy interests of all the people of the State of Minnesota, and we have an obligation to ourselves and to the Constitution of this State to do what we can, in our limited role as a court of last resort, to provide reasonable protection to those interests.
Justice Tomljanovich’s foresight was 20/20. In the year and a half since the Minnesota Supreme Court’s ruling in State v. Brooks, the legitimacy of the consent search exception—at least in the DWI context—has been eviscerated. We have been unable to find a single case where the Court of Appeals affirmed the District Court’s finding of coercion in the DWI context. Not when the driver told the officer he did not consent, and not even when an individual had been attacked by police dogs just prior to allegedly giving consent. Equally distressing is the recent attempt by the Minnesota Court of Appeals, in State v. Bernard, to revive the long dead “hypothetical warrant doctrine,” which essentially nullifies the Fourth Amendment warrant requirement by cutting out the pre-search review of probable cause by a neutral magistrate.
How did we get here? Historically, Minnesota courts have construed the consent search exception to the warrant requirement more narrowly than the United States Supreme Court. In cases decided in 1969 (State v. Mitchell), 1970 (State v. High), and 1999 (State v. Harris), the Minnesota Supreme Court found that just the arrest—and even a pre-arrest seizure—of a suspect pretty much ruled out any “free and voluntary consent.” Their logic was simple and direct: once law enforcement has asserted its authority over you, law enforcement has authority over you. They have guns, tazers, chemical spray, retractable batons, and the training in how to use them; you have the duty to obey, to let them order you around, take your shoes and wallet, and lock your hands behind your back. The imbalance of power is inherently coercive, and it is the court’s duty to protect individuals from abuse of government power. 
Decades worth of Minnesota judges enforcing the protections of the Fourth Amendment didn’t just happen in a vacuum. The Court’s decisions in Mitchell and High came in the wake of the federal government’s 1967 mandate that all states implement an implied consent law. Imagine the justices’ jaws dropping; what could be more ridiculous than finding that an individual gave free and voluntary consent when that “consent” was created by the legislature and automatically given when the individual got behind the wheel? Again, lest some take offense, the Court said it best in 1976, in Prideaux v. Dept. of Public Safety
The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense.
Those scare quotes around the word “consenting?” Those were added by the Supreme Court . . . the same Supreme Court that, approximately 37 years later, decided that the “obvious and intended effect of the implied-consent law” is to “make it clear to drivers that they have a choice as to whether to submit to testing.” That’s quite a turnaround.
So, we’ve seen the concept of “consent” evolve slowly over the course of decades, before seeing a sudden, radical redefinition of the concept in 2013. Before Brooks, putting a suspect in handcuffs was often enough to render any consent involuntary, and reading a driver the Implied Consent Advisory was “obviously coercive.” After Brooks, neither of those factors appear to matter.
So what does matter? We’ll discuss that in the next post, when we analyze Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks.

This is the second post in our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In this series we discuss: 

1. The History of the Consent Exception to the Fourth Amendment Warrant Requirement

2. The Evolution of the Consent Search Doctrine 

3. Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks 

4. Consent as a Matter of Law: The Minnesota Court of Appeals and the Consent Exception to the Fourth Amendment

5. The Constitutional Implications of Minnesota’s New Standard for the Consent Exception to the Fourth Amendment

6. The Future of the Consent Search Doctrine



Breaking News - Submission Is Not Consent


We interrupt the consent search blog series currently in progress to bring you breaking news: Minnesota district court judges are finally finding that submission to lawful authority is not consent. Relying on the 8th Circuit’s 2004 and 2005 decisions in U.S. v. Gray and U.S. v. Sanders, at least two brave judges are resuscitating the Fourth Amendment by reminding the State that an individual’s consent to a warrantless search may always be withdrawn. Drivers reserve the right to change their minds, and “no” once again means “no.”

Don’t break out the champagne yet, though. These brave district court judges, and their refreshingly true-to-the-constitution decisions, will likely face reversal on appeal when the Court of Appeals finds consent under its interpretation of State v. Brooks. We’re still looking, but we have yet to find a single DWI test coercion case the Court of Appeals couldn’t convert to consent.

So, what is the take-away? Lawyers need to understand the critical legal distinction between submission and consent so that they can effectively counsel drivers about their constitutional rights. In State v. Hoven, the Minnesota Supreme Court noted, as did the federal court in Gray and Sanders, that an individual may withdraw consent to a warrantless search.

In the DWI context, drivers have the constitutional right to see a warrant before law enforcement obtain a blood, breath, or urine sample. According to the courts, drivers should be able to withdraw their consent to a warrantless search by expressing their intent to withdraw consent with an unequivocal act or statement (I’ll give an example of what that looks like in a minute). Once a driver withdraws his or her consent, the driver may then submit to the warrantless test law enforcement tells them they are “required by law” to take … because submitting to that test is not the same thing as consenting to it.  Without valid consent – or one of the other judicially-crafted exceptions to the constitution – the results of a warrantless test must be suppressed.

Attorneys cannot ethically or legally counsel a client to commit the crime of test refusal, but attorneys must inform clients that an unequivocal withdrawal of consent by word or action is a constitutional right. While this isn’t legal advice, something like this oughtta do it: “I withdraw my implied consent to a warrantless search and I do not freely and voluntarily consent to the warrantless test of my blood, breath, or urine. I am submitting to a chemical test only because I am required to do so by law, and I am acquiescing to a claim of lawful authority. I do not consent.”

Stay tuned for the next installment in the consent search series: The Evolution of the Consent Search Doctrine.




The History of the Consent Exception to the Fourth Amendment Warrant Requirement Constitution didn't come with built-in exceptions; courts have created them. It wasn't until 1921, in Amos v. United States, that the United States Supreme Court first recognized the possibility of a consent exception to the Fourth Amendment Warrant Requirement. It took another 25 years, in Zap v. United States, for the Court to turn the possibility into a reality. Before 1946, you couldn't waive your right to a warrant even if you wanted to; every search had to be authorized by a warrant issued by a neutral magistrate based on probable cause. The writers of our Constitution knew all-too-well the danger posed to personal liberty by unchecked, unilateral action by one branch of government. Hence, the Fourth Amendment Warrant Requirement.

Given our nation’s belief in individual freedom, it makes sense that a warrantless search is reasonable when it is conducted with the permission of the person searched. In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. When police officers ask an individual for consent to search, it reinforces the rule of law for the individual to actually consent (or refuse to consent), and for the police to act in accordance, by executing the consensual search (or getting a warrant). That's why, when the Court created the consent search exception in the 1946 Zap case, the Court relied on actual consent; an individual had to give an intentional, knowing, and voluntary waiver of his or her Fourth Amendment rights before a search would be considered consensual. Only the truly voluntary relinquishment of the right to a warrant could support the constitutionality of a warrantless search.

Actual consent – “Yes, I give you permission to search” or “No, come back with a warrant” – remained the benchmark for about 50 years. Then, in 1973, the Court issued its decision in Schneckloth v. Bustamonte. In that case, the Court developed a new approach to the consent search doctrine by shifting the criteria for consent from actual, express consent given freely and intentionally, to "consent" as determined by the court's application of a “voluntariness” test to "the totality of the circumstances."

The significance of this shift cannot be overstated; after Bustamonte, actual, express consent (or refusal to consent) was no longer determinative. Even when there was no actual, express consent, the courts began to find "consent" by asking not whether an individual consented, but rather whether a reasonable officer would have construed the individual's actions as consent. As of 1976, courts could find "consent" as a matter of law even when there was no actual, express, voluntary consent as a matter of fact.

In Bustamonte, the Court separated consent search analysis from the original characteristics that made consent searches reasonable. Instead of focusing on the individual’s actual consent to forego a constitutional protection as the basis for the doctrine, the Court emphasized the balance between law enforcement officials’ interest in conducting searches and the private citizen’s fear of coercion. This new focus on law enforcement interests moved the doctrine of the consent search exception away from an objective standard, which focused on a particular person’s actual waiver of his or her constitutional right, to a subjective standard, which assessed whether a law enforcement officer’s actions coerced the suspect into permitting a warrantless search. "Consent" was determined by the one asking for it, not the one giving it.

Law enforcement has no complaints about this shift, but for individuals, the consent search situation has only gone downhill since Bustamonte. Subsequent court decisions have further distanced the consent search exception from its original justification by shifting the focus of consent analysis entirely away from the objective, actual manifestation of an individual’s consent to the court's interpretation of the facts from the officer’s perspective in the absence of express consent. In a recent case here in Minnesota, the Court of Appeals found free and voluntary consent from a 21-year veteran of our U.S. Navy, even when the veteran told the officer who arrested him “I guess I will take your test, but I am not consenting.” This approach goes far beyond cases that have come before, and appears to be ushering in a new consent calculation: submission to a search automatically equals consent to that search.

This plays out in a dangerous way in the context of warrantless DWI searches: the Minnesota Implied Consent Advisory says "Minnesota law requires you to submit to a chemical test" and "refusal to submit is a crime." The Advisory doesn't mention the fact that if a driver refuses, no test will be performed against his will. And law enforcement is not required to clarify that a driver can (and must) submit to a warrantless search to obey the law without giving free and voluntary consent to that warrantless search.

What if the Implied Consent Advisory said "Minnesota law requires you to submit to a haircut" and "refusing to submit to a haircut is a crime"? You'd submit to the haircut to avoid the crime, even if you didn't want a haircut, right? You might even say, "I’ll submit to this haircut because it's the only way I can avoid committing a crime, but I am not consenting to this haircut.” And it logically follows that you'd refuse to submit to a haircut if you could do so without committing a crime. Well, according to Minnesota law, in that situation you freely and voluntarily consented to the haircut.

This is the first post in our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In this series we discuss: 

1. The History of the Consent Exception to the Fourth Amendment Warrant Requirement

2. The Evolution of the Consent Search Doctrine 

3. Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks 

4. Consent as a Matter of Law: The Minnesota Court of Appeals and the Consent Exception to the Fourth Amendment

5. The Constitutional Implications of Minnesota’s New Standard for the Consent Exception to the Fourth Amendment

6. The Future of the Consent Search Doctrine

Continue Reading...

Will the Minnesota Supreme Court Avoid the Constitutionality of Refusal? An Examination of the Search Incident to Arrest Exception.

 Any time now, we expect the Minnesota Supreme Court to issue its long-awaited decision in State v. Bernard. That case will (likely) answer the question that has plagued Minnesota for years – is it constitutional to criminalize a driver’s refusal to submit to a blood, breath, or urine test?

We have previously discussed why Bernard is only “likely” to determine whether Minnesota’s DWI test refusal law is unconstitutional: the Court could avoid the question entirely by ruling that breath tests (as opposed to blood or urine tests) don’t qualify as true “searches” under the Fourth Amendment. The case law says otherwise, as does common sense, but that would be one method of postponing the ultimate fate of our DWI test refusal law. A method, but not the only method.

There is another potential side road on the path towards determining if our test refusal law is constitutional: does the “Search Incident to Arrest” Exception apply to blood, breath, and urine tests . . . which is another way of bypassing the issue altogether, and would avoid having to squarely address the legislature’s decision to punish the well-established right to say “no” to warrantless searches. As we’ve discussed previously, review of the Bernard Oral Arguments at least suggests that our state’s highest Court is looking for a new blanket exception to the warrant requirement in DWI cases. Could this be the one?

Search incident to arrest is basically a way for law enforcement to search a person (or a person’s belongings) without a warrant. This is permissible so as there is probable cause for the arrest. However, the law does not give automatic permission; there are really only two clear applications when this is allowed: (1) when it is needed for officer safety, and (2) when it is needed for the preservation of evidence that can be destroyed.

Consider these two reasons in the context of taking a person’s breath sample during a DWI arrest.

Breath does not seem to be taken from a person for officer safety, and at oral arguments the Court mostly disregarded this application. Destruction of evidence, however, was a hot topic. Justice Wilhelmina Wright at one point urged, “The body of the person has the ability to destroy [the evidence].” At first blush, the fact that people naturally sober up (destroying alcohol) would seem to provide a solid rationale for once again treating DWI tests as though they are not protected by the Constitution’s warrant requirement

But do the activities of the human liver rise to the level of actual “destruction of evidence?” When you consider it for a second, this is a pretty loose definition of the word “destroy,” a word typically used to infer some sort of extreme intentionality. The dictionary definition of “destroy” is to “put an end to something’s existence.”

In this sense, to hold that the dissipation of alcohol in one’s body is tantamount to a suspect “destroying” evidence (such as flushing drugs down a toilet) would be a feat of personification; it would give the body an intentionality it does not possess. Why? Because of a basic scientific reality: there’s actually nothing a person can do to change the rate of alcohol metabolization in their body. The only way that alcohol concentration lowers is the passage of time. Consuming coffee or water, taking a cold shower, or any other hokey remedy your college roommate told you about, all do nothing to lower one’s blood alcohol concentration. Even vomiting fails make a difference. This is crucial because, as McNeely teaches us, the rapid dissipation of alcohol in a person’s system does not create an automatic exception to the warrant requirement.

Still, at oral arguments in Bernard the Court pressed this issue with the attorneys, pointing out that search incident to arrest may be used in a less constricted ways before adding that recent cases, including the recent Riley v. California decision, may allow for further application of the exception.

Overall, the search of someone’s breath incident to a DWI arrest seems to go far beyond the purpose of the “search incident to arrest” exception to the warrant requirement . . . especially considering that exigency is precisely the problem the Court examined with the “destruction” of alcohol evidence in McNeely. It seems unlikely that the Minnesota Supreme Court will dramatically expand the scope of this particular Constitutional exception, but everyone who practices in the area of DWI defense needs to keep this possibility on their radar.

Join us later this week when we examine yet another potential side road: the “Good Faith Exception.” 

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). 

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.


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.   

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.


Kansas Finds DWI Implied Consent Law Unconstitutional

In 2012, we released a blog detailing the ruling in a then-unremarkable case out of the State of Missouri - a little case captioned Missouri v. McNeely.

Since then, the McNeely case has gotten a little more press.

Today, America's heartland issued another decision that may have broad reaching consequences in the future. A Kansas Appellate Court just ruled that their DWI Implied Consent law is unconstitutional. Specifically, the case of State v. DeClerck concluded that the purportedly "implied consent to chemical testing given by drivers on our state's roads" is absolutely not the same thing as "consent under the Fourth Amendment."

The Court repeatedly said, in no uncertain terms, that statutes like the Implied Consent law can not and do not trump constitutional principles, like the right to be free from warrantless searches and seizures. In the end, the State of Kansas concluded that you cannot demand that driver's give up their Constitutional rights just by getting behind the wheel of a vehicle.

These same arguments are being raised in Minnesota, and will likely make their way to the United States Supreme Court in the same way that McNeely did. But until that happens, we'll continue to fight this issue out case by case, judge by judge, county by county.

Minnesota Court of Appeals Discusses Consent in a Post Brooks World

Yesterday, the Minnesota Court of Appeals issued its first decision in the wake of State v. Brooks. It was the case of State v. Drum, and you can read it here.

This latest decision is "unpublished" meaning the decision does not bind other judges or other cases -  in a sense, the decision only really matters to Mr. Drum himself. But in another sense, it proves a chilling reminder of just how far down the rabbit hole Minnesota has gone with respect to how our courts define the word "consent."

The Drum decision attempts to clarify the decision in Brooks, and states that "as a matter of law" there is nothing coercive about telling someone that if they don't "freely and voluntarily consent" to a search they will be committing a new crime, right there, in front of a police officer. Law enforcement agents obtained incriminating evidence against Drum, evidence that cannot be obtained without a warrant, by "convincing" him to waive his constitutional right to that warrant . . . and they did it by telling him he'd be committing a brand new crime if he didn't hurry up and waive his rights. Some members of the Court of Appeals have interpreted this type of situation to constitute "free and voluntary" consent as a matter of law.

What's particularly troubling is that in this particular case, the government attorney actually conceded (admitted) that it was not arguing that Mr. Drum consented - the government basically told the Court during oral arguments that there was no consent in this case. Despite this concession, the Court still found that Drum "freely and voluntarily" consented.

Shortly after the United States Supreme Court reaffirmed the rule that DWI tests do, in fact, require warrants, we speculated about the changes Minnesota would have to make to our own DWI laws to make sure that drivers were not being coerced into "consenting" to warrantless searches. Back then, we had no idea that Minnesota judges would actually consider threats to charge people with new crimes as non-coercive. While contrary to standard logic and a lot of prior case law, this approach does have the benefit of not having to amend any laws to conform with the Constitution.

But if you read the Drum decision, pay close attention to the last couple of paragraphs, where the Court of Appeals provided a . . . friendly reminder . . . to the attorney to keep things civil. It appears that the attorney that argued the Drum case was fairly frank in his opinions regarding the merits of the Brooks decision, to a degree that alarmed the Court of Appeals. Whether he went too far or not is not for us to say, but we already know that other judges also feel the exact same way, and have also expressed some fairly frank opinions regarding the Brooks decision.

Minnesota is turning into a bubbling pot, just short of a rolling boil, as more and more drivers "consent" to give up their Constitutional rights under the dual threat of being told they are "required by law" to give up their rights and that if they don't give up their rights, they're committing a brand new crime.

Right here, right now, both myself and Mr. Ramsay have no intention of holding back in our attacks against these "consensual" tests. When something is so contrary to common sense, so contrary to decades of prior United States Supreme Court cases, and so contrary to our client's interests, it would be impossible to sleep at night without knowing that we put 100% of our effort, experience, and enthusiasm into attacking these warrantless searches from every angle.

This isn't just about drunk drivers - not anymore. It's about government agents handcuffing, arresting, and taking Minnesotans to jail, then telling them that they are required by law to waive a constitutional right, and then telling them that if they don't waive that right they are committing a crime . . . and then, months later, being told that they "freely and voluntarily" waived that constitutional right like good citizens. There is still ample room to challenge this type of Orwellian conduct; there has to be, because the alternative would leave us living in a world that no free man or woman would want to be a part of. Every Minnesotan - even those who never touch a drop of alcohol - is affected by what is going on in our courts right now, and every Minnesotan needs good defense attorneys to use every means at their disposal to fight against this type of government conduct.


Another Minnesota Judge Concludes DWI Breath Test Was Coerced

If you're a regular reader of our blog, you know that we previously discussed the role of judges in our criminal justice system. Sometimes, this role entails suppressing evidence and dismissing DWI charges because the State violated a defendant's constitutional rights.

Prosecutors around the state are now tasked with proving that every blood, breath and urine test was taken with the "free and voluntary consent" of the driver. If those prosecutors cannot convince a judge that the driver truly consented - if the judge instead finds that the driver was coerced - the test results are inadmissible in court.

Today we were provided with another order suppressing DWI breath test results because the driver was coerced. This is another example of a judge suppressing the results of a DWI test after the Minnesota Supreme Court issued the Brooks decision (notably, Brooks is a decision that will likely be appealed to the United States Supreme Court).

We discussed the implications of the Brooks decision when it was released, noting the questions that the Minnesota Supreme Court left unanswered. One question was "what happens if a driver is told he is required to submit to a test, but never has the chance to speak to an attorney?" In this most recent suppression order, the court concluded that this driver was coerced. If you've been charged with a DWI, did you feel like you had no choice but to submit to testing? Like you were being coerced into agreeing to submit to a test?

You can read the full order here.

Minnesota Judge Concludes DWI Test Was Coerced

MN DWI Gladiator Trial By CombatApplying the protections of the Constitution to our citizens is not just the role of our Courts; legislators, law enforcement agents and prosecutors all have a duty to uphold the Constitution. However, our criminal justice system is an adversarial one; while everyone has a duty to uphold the Constitution, the fact of the matter is that every criminal case is a pitched battle between the State (represented by the police and prosecutors) and a defendant (hopefully one represented by a zealous defense attorney). In a real sense, a criminal case is set up a lot like the old method of trial by combat; under our adversarial system, the parties duke it out, and the side that argues the best case has the best opportunity to prevail.

Why the history lesson? It's because the adversarial system runs the risk of promoting a "win at all cost" attitude by the State, where the Constitution becomes an mere impediment to victory that must be overcome, instead of a crucial list of fundamental rights and must be upheld.

Which is a long winded way of bringing us around to the role of the Courts: independent judges who are neutral referees in the trial by combat that is a criminal case. One of the primary roles of a judge is to determine if a defendant's Constitutional rights were violated by overzealous (or merely mistaken) police officers, or determine if a prosecutor is attempting to use evidence that was obtained unconstitutionally. Judges act as a brake on the adversarial system, a way to make sure that the respective parties aren't trampling the Constitution in their desire to win their case.

The battle over how the Constitution applies to DWI cases has taken a new tone recently, based on a couple of Supreme Court cases. First, in Missouri v. McNeely, the United States Supreme Court reinforced the long-standing rule that DWI tests are, in fact, searches, and therefore require law enforcement to obtain warrants. Then, in State v. Brooks, the Minnesota Supreme Court reinforced the equally long-standing rule that police don't need to obtain a warrant if the person they wish to search freely and voluntarily consents to waive their right to a warrant.

We're now in a position where the admissibility of almost every DWI test result hinges on whether or not the driver freely and voluntarily consented to a warrantless search, or if they took the test due to coercion (side note: other exceptions besides "consent" sometimes apply, and of course police can always get a valid warrant and avoid the whole argument, but few police actually obtain warrants and most prosecutors are strictly arguing for the "consent" exception).

Recently, a Minnesota judge stepped into the fray and ruled that  DWI test was inadmissible, ruling that because the driver was coerced into submitting to the test, the results of that search/test were inadmissible. Whether a driver was coerced is a very fact-specific inquiry, and requires a truly well-seasoned attorney to effectively use as a defense.

This is yet another well written order, suppressing evidence in a DWI case after the Brooks decision, and is definitely worth reading. You can click here to download a copy for yourself. Anyone who intends to fully defend against a DWI charge should probably read it twice.

Minnesota Judges Continue to Find DWI Test Refusal Law Unconstitutional

We've been fighting against Minnesota's DWI test refusal law for over five years. Today, we were provided with an order that demonstrates that this fight is still raging across Minnesota Courts, and that judges are continuing to rule in favor of the defense.

To the best of our knowledge, this is the first judicial order to come down after theState v. Brooks decision that finds that the crime of test refusal is unconstitutional.

You can read the order here, by clicking this link. The judge in this case not only does an excellent job of boiling the ruling down to one carefully crafted paragraph, but then goes on to expand on that one simple paragraph with several pages of detailed analysis.

Analyzing the Minnesota Supreme Court Decision in Brooks

We pride ourselves on bringing our readers up-to-date, relevant, and educational information regarding Minnesota's DWI laws, along with our experienced analysis.

But, first and foremost, our firm exists to defend drivers charged with DWI. We can't blog every day, on every topic, because our attorneys spend almost every day in court, representing our clients. And, in the end, that's what drove us to become defense attorney's - the desire to help people who ran afoul of Minnesota's convoluted DWI scheme and got arrested for DWI.

Other attorneys blog too - even the really busy ones. And today we'd like to highlight a post by Carol Weissenborn, over at the Minnesota Supreme Court Criminal Blog. Ms. Weissenborn is not only a defense attorney, but also a law professor, and yet she still finds time to post blogs regarding developments at the Minnesota Supreme Court.

She recently published what might be the best analysis of the Brooks decision we've ever seen. You'll want to click that link and read the whole article, but here's an excerpt from the introduction to whet your appetite:

Now I remember why my expectations are low in consent-to-search cases.  They end in opinions like the one we got in Brooks.  The Court performed a totality of the circumstances analysis.  Like many such analyses, it was substantively choppy and composed of parts that did not necessarily follow one from the other so that, if you shuffled the pieces and recombined them, you would wind up with an opinion that was not very different than the one with which you started . . . .  the Minnesota Supreme Court had the opportunity to reckon honestly with the nature of coercion in the implied-consent-to-search context but, whether from a failure of inclination or imagination, it did not do so.

Again, please check out the full article here. It's worth your time.

Our Own Charles Ramsay Appears on Channel 4 WCCO To Analyze the Brooks Decision

As one of the premiere Minnesota attorneys to practice DWI defense, our own Charles Ramsay is often called upon to provide insight and analysis when it comes to new developments in DWI law.

Yesterday was no exception, and Charles Ramsay appeared on Channel 4, WCCO to discuss the potential impact of the Minnesota Supreme Court's recent decision in the State v. Brooks case.

You can watch the video below, but one notable quote bears repeating: "[E]very case must be analyzed on a case-by-case basis. It’s going to clog the courts. More people who have been arrested for DWI are going to fight because of this.”

Will the Minnesota Legislature step in and amend our current DWI laws to ensure that test results remain admissible as evidence? Time will tell.



Brooks Decision : Some Questions Answered Yet Some Puzzles Remain Unsolved

Today, the Minnesota Supreme Court issued their decision in State v. Brooks. The majority concluded that, on the facts presented to the Court, Mr. Brooks freely and voluntarily consented to submit to warrantless searches and seizures of his blood and his urine. This decision answered some questions, but left some huge issues unresolved.

Questions Answered

That holding answered one question right off the bat, when it affirmed that DWI urine tests and DWI blood tests are undoubtedly searches that are due the full protection of the Warrant Clause of the Fourth Amendment to the United States Constitution (and are presumably also due that same protection under the similar protections provided by the Minnesota Constitution in Article I, Section 10).

The holding then answered another question, when it concluded that Minnesota's Implied Consent Law is not coercive as a matter of law. The Court said that just because the police are telling drivers they are "required" to submit to testing and that "refusal to submit to testing is a crime" they are not actually forcing drivers to say "yes" to these searches. In layman's terms, Brooks states that the police can tell someone that they are required by law to consent to a warrantless search, and then turn around and tell the court that they didn't bother getting a warrant because the person was nice enough to freely and voluntarily consent to the warrantless search . . .

Remaining Puzzles:

Brooks had some very unique facts. In his case, he exercised his right to contact an attorney (multiple times) and had plenty of experience dealing with law enforcement and being arrested for DWI. The Court took this into account when concluding that Brooks "freely and voluntarily" consented to these tests.

But not every DWI is handled that way. Instead, imagine that a driver tells the officer, "sure, I'll take a test. Just go get a warrant. No rush - I'll wait right here." It appears, under the logic of Brooks, that this driver is not only not refusing, but is also carefully exercising their constitutional right to withhold their consent.

Now, in this hypothetical, the officer may just say, "I'm not gonna get a warrant, I'm just going to charge you with refusal." Interestingly, post-Brooks, that refusal may not hold up in a court of law. That's because Minnesota law provides that drivers can, in fact, refuse to submit to testing if that refusal is "reasonable." A court could conclude that nothing is more reasonable than patiently waiting to be shown a search warrant, and throw out the refusal charge.

Justice Stras wrote a compelling concurrence that would have avoided all of this uncertainty, but his was the lone vote in opposition - five other justices agreed that Brooks consented to this warrantless search. However, Justice Stras' concurrence may actually provide future guidance in Minnesota, because the Brooks decision raised one final, currently unanswerable question: Will the United States Supreme Court accept review of this case, and undo Minnesota's new definition of what constitutes "consent" in the same way that the McNeely decision undid Minnesota's new definition of what constitutes "exigency?"

When it comes to the state of DWI law in Minnesota, we live in very, very interesting times.


Brooks Decision Released

Today, the Minnesota Supreme Court issued the much anticipated decision in State v. Brooks, which deals with the admissibility of DWI blood, breath and urine test results in Minnesota. You can read the entire decision here.

For those of you anxious to just cut to the chase, without reading the entire decision, here's the Court's own summary of what the Brooks decision says:

When, based on the totality of the circumstances, appellant consented to the search, police did not need a warrant to search appellant’s blood or urine.


Now go ahead and read the whole decision, but don't forget to check back here soon - we'll be posting our interpretation and first impressions of the decision very shortly.


Breaking News: Minnesota Supreme Court to Issue Brooks Decision Tomorrow

Tomorrow, October 23, 2013, at 10:00 a.m., the Minnesota Supreme Court will issue the long awaited decision in the State v. Brooks case. This decision will be the Minnesota Supreme Court's first opportunity to rule on whether DWI blood breath and urine tests are admissible in Minnesota since the United State's Supreme Court decision in Missouri v. McNeely.

We'll be posting the decision here on our blog as soon as it is released. We'll follow up shortly thereafter with our first impressions. So be sure to check back here at 10:00 a.m. tomorrow morning.


Everything You Need to Know About McNeely in Minnesota

If you've been charged with a DWI, or know somebody who has, there is one thing you need to know: DWI law in Minnesota is incredibly uncertain right now. Test results are being thrown out at unprecedented rates, good defense attorneys are getting charges reduced and cases dismissed, and everyone is waiting for further guidance from the highest court in the land. And it's all because of one case: Missouri v. McNeely.

We've blogged about McNeely a lot, but rather than force our new readers to dig through months of posts, we're putting them all right here, as a sort of McNeely CheatSheat. So grab a cup of coffee, get comfortable, and get ready to click on as many hyperlinks as you can handle.

Everything You Need to Know

Back in early 2012, before the United States Supreme Court even came into the picture, we highlighted the Missouri v. McNeely case and emphasized its importance. Fast forward nine months, where the U.S. Supreme Court decided to accept review of the McNeely case. We then blogged about oral arguments, and provided the public with all the relevant briefs.

After arguments concluded, we teased our readers a little bit, and then provided them with a rundown of the (then) current status of Minnesota's DWI refusal law, how consent worked in Minnesota, and how some Minnesota judges were already anticipating the impact of the McNeely case in Minnesota.

Then, the decision came down. Just as we predicted, the U.S. Supreme Court discarded the "single-factor exigency doctrine" and we immediately set out to educate the public. Along with appearances on local news outlets, we started explaining how McNeely would likely affect Minnesota law, including not only the impact the decision could have on DWI Test Refusals but also how the decision fundamentally altered how judges and prosecutors even viewed the crime of driving while impaired (that one includes a fantastic chart!)

Eventually, the battle lines were drawn, as judges around the State began issuing rulings regarding DWI tests. Some judges agreed with our interpretation, and suppressed unconstitutionally obtained test results. In response, prosecutors started refining their arguments, trying to minimize or outright ignore the impact of McNeely.

So the Minnesota Supreme Court stepped in, to try and settle some of the questions raised by McNeely by hearing the Minnesota case of State v. Brooks.

We're now waiting for guidance from the Minnesota Supreme Court. Some judges are taking the opportunity to express their creativity, but even those who are remaining silent are beginning to see that search warrants aren't as troublesome as the prosecutors have led them to believe.

In the end, Brooks may simply raise more questions than answers; but rest assured, we'll still be here fighting the good fight and litigating this issue. After all, we were one of the first firms in the State to start demanding search warrants in DWI cases, way back in 2007, and we've still got a lot of fight left in us.

WIll the United States Supreme Court Review Minnesota's Test Refusal Law?

As you are probably aware, the Minnesota Supreme Court recently heard oral arguments in the Brooks case. For newcomers, the Brooks case is the Minnesota Supreme Court's first chance to apply the holding in Missouri v. McNeely to a Minnesota DWI case. One question the Court is being asked to answer is, "are Minnesota driver's truly consenting to DWI searches when refusal to consent is treated as a separate crime?"

One fact we've kept relatively quiet is that we have a petition pending before the United States Supreme Court asking that exact same question. The highly prestigious SCOTUS Blog just listed our petition, in the case of Peppin v. Comm'r of Pub. Safety, as one of their "petitions to watch."

We know better than most that the odds of the United States Supreme Court accepting review of a case is very, very slight. However, in the Peppin case we have a reason to be at least a little optimistic that the Supreme Court will grant review - they already ordered the State of Minnesota to file a response to our petition. Opposing parties rarely file responses to petitions, and the State did not originally file one to our petition; however, it is incredibly rare for the SCOTUS to accept review of a case unless a response has been filed, meaning that at least one Justice felt it was appropriate to order a response from the Minnesota Attorney General's Office.

The Justices will decide the fate of the Peppin case at their September 30, 2013 Conference. If the petition is granted, it would be a remarkable, once-in-a-lifetime opportunity for our firm to be able to argue a constitutional question of such incredible importance before the highest Court in the land. We sincerely hope that our petition is granted . . .but even if it's not, we still have every intention of arguing against Minnesota's practice of coercing consent from its citizens for each and every one of our clients.

Marching With the McNeely Gang: "Less Intrusive" Searches

Since the United States Supreme Court issued the McNeely decision, police officers and prosecutors alike have struggled to enforce Minnesota's DWI laws. Just as we predicted, SCOTUS used the McNeely case to destroy the previous belief that "DWI's don't require warrants." At its core, that was what McNeely was truly about - the fact that DWI searches (blood, urine and breath tests) don't have immunity from the Warrant Clause of the Fourth Amendment.

That doesn't mean that all these test results are inadmissible as evidence. It just means that they are presumed to be inadmissible; the government can still try and prove that an exception to the warrant requirement permitted law enforcement to execute a warrantless search. That's the argument being raised in many cases - that drivers either consented to the search (meaning no warrant was necessary) or that it was a "search incident to arrest" (again, no warrant needed).

But some are going a step further, claiming that blood, urine and breath tests are not even "searches" and therefore, once again, do not require a warrant. Now, few prosecutors are bold enough to argue that blood tests are not searches, but many are nevertheless trying to claim that because breath tests (for example) are "less intrusive" than blood tests, they don't really count as a true search and therefore no warrant is ever needed.

It's an interesting argument . . . or it would be, if the law was not so straightforward regarding "less intrusive" searches. That's because prosecutors have raised this same argument before, and when they raised it, the lost. Repeatedly.

Look at the Kyllo case. In Kyllo, the SCOTUS rejected the government's argument that using thermal imaging equipment to search a person's home was not actually a "search" because it was far less intrusive then physically entering the home. SCOTUS didn't buy it; the Court announced that the definition of a “search” under the Fourth Amendment included “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area.'” So answer me this: how is a blood test a search but a breath test is not, when all a breath test amounts to is using technology to obtain alcohol concentration information that could not otherwise have been obtained without the physical intrusion of a needle? Or, asked another way, are our bodies entitled to any less protection and privacy than our homes?

Now look at the Katz case. In Katz, the SCOTUS rejected the government’s argument that an electronic listening device it had placed on the outside of a public telephone booth did not constitute a "search" because it “involved no physical penetration of the telephone booth.” Again, SCOTUS didn't buy it; the Court announced that, “the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” Now, answer this question: how is a blood test a search but a breath test is not, when the definition of a search can't be based upon whether or not it involves a physical intrusion (like a needle)? Or, asked another way, are public phone booths entitled to more protection than our very bodies?

These two cases - Kyllo and Katz - are all covered in every first year law student's Constitutional Law class. Citing these cases shouldn't be necessary - Skinner v. Ry. Labor Execs.’ Ass’n, and State v. Netland both make it crystal clear that breath tests are, in fact, protected searches - but if the prosecutor is grasping at straws, it is always best to be ready for it. Long story short, if a prosecutor says that they don't need warrants for breath test cases, ask 'em about Kyllo and Katz. I know that I always do.

Up next? We'll talk about another so-called exception to the warrant requirement, and why a blood, breath or urine test is anything but a "search incident to arrest."

Watch Brooks Oral Arguments

As we talked about yesterday, the Supreme Court recently heard oral arguments in the Brooks case. This case is the Minnesota Supreme Court's first opportunity to apply theMcNeely decision to Minnesota's DWI laws, and is being closely watched by the defense bar, prosecutors, the Attorney General's office, and anyone who has been charge with a DWI in Minnesota.

The video may be a bit dry for the average reader, but anyone with a law degree (or just an interest in criminal law) should enjoy observing the back-and-forth between the Court and the attorneys arguing the case.

Note that the video starts about 30 seconds late, shortly after Jeff Sheridan's opening remarks.

TO WATCH THE VIDEO: click on the "Continue Reading" link below.


Continue Reading...

Suppressing Test Results Under McNeely: Winning the Battle But Not the War

I spend a lot of my time speaking with individuals who want to hire me, and our firm, as their attorneys. Lately, a lot of those conversations have involved explaining the impact of Missouri v. McNeely, what I intend to do to get their test results suppressed, and why that matters.

Answering the question, "why that matters" is what separates a great defense attorney from an average one - and when it comes to defending your liberty and your property, the difference between "great" and "average" is the difference between success and failure.


Because here's a secret an average defense attorney will never reveal - even if that blood, breath or urine test is suppressed due to a McNeely challenge, the state can still take you to trial and try to convict you of driving while impaired.

At our firm, "ready for trial" is a battle-cry, a chance for us to go toe-to-toe with the state and use our years of experience to make sure that the government does not get a conviction. For those average attorneys, however (the ones using recycled McNeely briefs and who don't really understand or believe in the issues presented) . .  well, take a look at the picture of the cute little baby at the start of this post.

An average attorney, as opposed to a great attorney, will go from the pure joy of getting a test result suppressed, to terror at having to actually take a case to trial, in about six seconds. That's not the way to win a case.

Despite the clear language of the McNeely decision, Minnesota still refuses to adjust their DWI laws to conform with the constitution. Until that day comes, either by legislative act or by judicial decree, we'll continue to fight the good fight. And we'll continue to tell our clients the honest truth: getting their test results suppressed is winning one battle, but does not necessarily mean we've won the war.

But it certainly brings us one step closer.

By Popular Demand: Judge Pendleton's McNeely Order

In our previous blog we discussed the shifting legal landscape regarding district court challenges to DWI tests based upon the McNeely decision. We also included a link to a redacted copy of Judge Pendleton's recently issued analysis of the issue, which ultimately ruled (after detailed analysis) that a breath test search taken without a warrant was unconstitutional.

Many readers asked for a full version of the order.

Here it is.

Dissecting McNeely: An Insightful Analysis of Minnesota DWI Law (Updated)

Judges across Minnesota are beginning to issue orders that carefully analyze the impact of the decision in Missouri v. McNeely on Minnesota's DWI Laws.

Today we're going to post one of the more insightful orders issued to date, authored by the Honorable Alan Pendleton from the 10th Judicial District. Judge Pendleton is well regarded not just as a fair and honest judge, but also for his near limitless ability to act as an educator. Among other activities, Judge Pendleton authors a series of "Judicial Training Tips" that provide simple, quick reference sheets for our extremely overworked judiciary (we are a particular fan of his article on obtaining telephonic warrants)

We recently received a copy of his order, suppressing the results of a DWI breath test based upon the McNeely decision. This order, in our opinion, does a masterful job of explaining precisely how the Fourth Amendment applies to DWI searches, as well as how to analyze any potential exceptions to the warrant requirement that may exist in a DWI case. The order specifically deals with the "consent" exception in great detail, finding that there is no basis in law to conclude that "implied consent" equals actual consent for the purposes of the Fourth Amendment.

This is one decision worth reading carefully. Here's the link to the order and memorandum of law.

McNeely Myths: Debunking Arguments Regarding McNeely's Impact on Minnesota DWI Tests


The battle lines are being drawn, and across Minnesota prosecutors and defense attorneys are butting heads over the scope and impact of the United States Supreme Court's (SCOTUS) decision in Missouri v. McNeely. The McNeely decision was a shock to many prosecutors - few people (with our firm being a notable exception) expected the SCOTUS to completely gut one of the fundamental assumptions that have run through decades of DWI experience in Minnesota.

That fundamental assumption - fundamental and wrong - was that the Fourth Amendment didn't apply to DWI searches like blood, breath and urine tests. Now we're questioning decades of legal decisions and statutes, rooting out the false assumptions and making sure that when the government obtains a DWI test, they're not violating the Constitution while doing it.

But while we're digging in, prosecutors are shooting back - many times, with arguments that have no basis in law and would be comical . . . if not for the fact that people's liberty is at stake.

Today we'll discuss one of these "myths in the making," the claim that the McNeely decision only deals with coerced blood draws . . . and leaves all other laws involving blood, breath and urine tests intact. This argument also claims that while that blood tests might be true searches under the Fourth Amendment, urine and breath tests are not, and do not require warrants.

It's an argument that's hard to understand, but easy to rebut. The government will typically claim (for example) that because urine tests are "less intrusive" than blood tests, people have a lesser expectation of privacy, and therefore police don't really have to consider getting a warrant. And to support their argument, they'll cite to the case of Skinner v. Ry. Labor Execs.’ Ass’n. That case does, in fact, spend a fair amount of time weighing the government’s interest in quick results against individual privacy interests, in a careful attempt to "assess the practicality of the warrant and probable cause requirements." Long story short, Skinner asks "just how intrusive is this search . . . in comparison to how important the evidence we're seeking is."

Sounds like a strong argument against warrants for breath and urine tests, right? Well, it sure would be, if the SCOTUS hadn't made it painfully clear this type of balancing only happens in "special needs" situations. What are "special needs" situations? Glad you asked! They occur only when a search is being performed "beyond" the typical needs of law enforcement. In fact, the court goes so far as to note that their opinion is based upon the assumption that law enforcement will never even have access to these blood, breath and urine tests. And prosecutors are citing to the Skinner case to support their arguments . . .

. . . seeming without reading the portion of Skinner that says this: . . .“Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis implicates similar concerns about bodily integrity and, like the blood alcohol test we considered in Schmerber should also be deemed a search.” And also this: “Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.”

Needless to say, if the prosecutor tries to argue that you have a diminished privacy interest in your breath or your urine, and that DWI convictions are just too important to bother with the Fourth Amendment, have them read the Skinner decision beginning to end. Then have them read it again. Then, look them in the eye and ask them if they think that a DWI breath or urine test is a "special needs" search, and wait for their answer.

Because it is certainly not.

McNeely: Turning the Tide for DWI

Since the United States Supreme Court (SCOTUS) released its long-awaited decision in Missouri v. McNeely, Minnesota courts have struggled with how to apply the Fourth Amendment to DWI searches after years of believing that the Constitution's rule that all people have the right, "to be secure in their persons . . . against unreasonable searches and seizures" did not apply to DWI tests.

Some judges have simply carried on as usual, usually by finding that the McNeely decision somehow has no effect in Minnesota (we'll discuss the logic behind these rulings in our upcoming myth-busting blog series). Other judges have taken the cautious course - placing their cases on hold pending further guidance from Minnesota's own Supreme Court on how to deal with this thorny issue.

Some judges, however, see that this issue isn't nearly as "thorny" as it appears, and that McNeely applies to Minnesota DWIs in a very straight forward way (we even constructed a handy flow chart to show just how simple the analysis is).

Here are several examples of judicial orders suppressing DWI test results and/or thoughtfully discussing the implications of the Missouri v. McNeely decision in Minnesota. There are many more out there - we're not going to provide them all, but these orders in particular are insightful and well written, and stand as good examples.

But even these orders only tell half the story - we've resolved numerous cases without even litigating this issue simply on the strength of our arguments.

Sibley County Order

Stearns County Order

Washington County Order

Rice County Order

Congratulations and thanks go out to Sharon Osborn, Max Keller, Richard Swanson and Carson Heefner who provided us with copies of the orders we're sharing here today!

Minnesota DWI Cases & Post-McNeely Warrantless Searches: A Roadmap to Sanity

In the wake of Missouri v. McNeely, prosecutors, defense attorneys, and judges are all being forced to take a very careful look at the Fourth Amendment, and the new life that the U.S. Supreme Court recently breathed into the constitutionality of DWI cases.

We recognized immediately how far reaching the impact of the McNeely case would be, particularly in Minnesota, and have been continually surprised by the amount of prosecutors (and even defense attorneys) who don't seem to understand how the Fourth Amendment works.

To try and simplify things, we've created a handy flow chart as a teaching tool. Flow charts are a time-honored method used by law students around the country who are trying to understand even the simplest legal concepts. They lay out a simple roadmap to follow and can help "visual learners" grasp concepts that aren't always easy to pick up from just reading dense case law.

Obviously, this chart simplifies things to a degree (a surprisingly small degree) and is more of a "cheat sheet" for those with knowledge of the law, best used to remind them of just how fundamentally basic it is to apply the Fourth Amendment to a DWI search. We'll discuss each step of the process in upcoming blogs.

But without further ado, here's the chart (click this link for the simplified version). This chart should make it easier to see exactly how much of an impact the McNeely decision has in Minnesota, and how difficult it will be for prosecutors to introduce any test results in pending and future DWI cases. Feel free to print it out!

Minnesota Citizen Charged with DWI Test Refusal after Drinking Urine: Is Refusal Law Constitutional after McNeely?

Last week a man was arrested by Woodbury, Minnesota police on suspicion of driving while impaired (DWI). Once at the Washington County jail, the officer asked the man to provide a urine sample. The man urinated in a urine collection bottle that contained a white preservative called sodium fluoride. Instead of handing it to the officer, he drank his own urine. All of it.

Now in Minnesota it is a crime to refuse a DWI test. The crime is more severe than taking and failing the test in most circumstances. According to the local newspaper which first broke the story, the driver will be charged with that crime. While this guy will likely be fodder for late night comedians around the world, he shouldn't plead guilty to the crime to refusing to submit to a DWI test.

We believe the statute making it a crime to refuse a DWI test is unconstitutional, and here’s why: Blood, breath and urine tests are searches, which invoke the fourth amendment. Warrantless searches – like this one presumably was – are generally unconstitutional and the results of those searches can’t be used by the government, unless a person gives their consent to a search (test). If the test was consensual, the government doesn’t need to worry about getting a warrant, and the results are now admissible in court. The huge elephant in the room is the fact that Minnesota's test refusal law makes it a crime for a citizen to refuse to waive his constitutional right to say “no thank you, get a warrant” whenever the police attempt to conduct a warrantless search.

We've challenged Minnesota's DWI test refusal law for years. We were successful in a test refusal case at the Minnesota Court of Appeals in 2007, but the Minnesota Supreme Court reversed that case in a 4-3 decision two years later. That reversal was where the Minnesota Supreme Court crafted their "single-factor-exigency" doctrine, which effectively said, “yes, blood/breath/urine tests are indeed searches, but the Fourth Amendment will never apply to them so law enforcement doesn’t need to even think about getting a warrant.”

Fortunately, the United State Supreme Court agreed with the three dissenting judges in Netland and struck down single factor exigency last month in Missouri v. McNeely. Although the U.S. Supreme Court didn't expressly overrule the Netland case, by invalidating single factor exigency and requiring search warrants in DWI cases, it cuts the legs out from the majority's opinion in Netland and essentially overturns the decision.

No Minnesota court has ruled on the constitutionality of Minnesota’s test refusal law since McNeely, but we expect our appellate courts to eventually find the law unconstitutional. Until then, pleading guilty to DWI test refusal doesn’t make sense-- even for those who chose to exercise their constitutional rights by . . . drinking their own urine.

Minnesota's Top DWI & DUI Defense Lawyers Present Continuing Legal Education Seminar

Minnesota Society for Criminal Justice

2013 Annual DWI Defense CLE – June 14, 2013

Recognized as the top DWI CLE in Minnesota

Featuring Prominent Local and Nationally Recognized DWI Attorneys

*** Recently Added *** Panel Discussion on Missouri v. McNeely


Every Minnesota DWI attorney should attend this seminar! Attendees will receive McNeely v. Missouri motions, memoranda and other documents. All materials will be provided on CD.


8:30 am                        Registration and Welcome


9:00-9:45 am                 View From The Appellate Bench:

The Honorable R.A. (Jim) Randall


9:45-10:30 am               Legislative and Case Law Update:

Douglas Hazelton


10:30-10:45 am            Break


10:45 am                      Enhancing DWI Penalties with Prior Implied Consent Revocations:

Dave Risk


11:15 am                      Prescription Drug DWIs and Revocations:

Jeff Sheridan


NOON                           Lunch (Included)


1:00-1:30 pm                 What Not to Do and How Not To Do It:

Samuel McCloud


1:30-2:30 pm                 Representing the Mentally Ill DWI Defendant:

Anna McLafferty (National Alliance on Mental Illness of Minnesota)


2:30-2:45 pm                 Break


2:45-3:30 pm                 McNeely – Vindication and Application of Netland, Shriner and Wiseman:

Panel Discussion by Lead Attorneys:

Chuck Ramsay, Jeffrey Ring, Jeff Sheridan


3:30-4:30 pm                 Standardized Field Sobriety Testing – Problems and Procedures:

Rebecca Rhoda Fisher, Sharon R. Osborn, Pamela King


4:30 pm                        Adjourn for Social Hour

No prosecutors will be permitted. Click here for the flyer, more information and registration.

DWI Urine Tests: U.S. Supreme Court Requires Search Warrant


TODAY the United State Supreme Court vacated a Minnesota DWI Urine test case and remanded back to Minnesota. 

This means that Urine & Breath test cases also are affected by the McNeely decision. 

This marks the end of most of Minnesota's DWI statute.


Charles Ramsay Explains the Impact of Missouri v. McNeely WCCO's Esme Murphy

Our own Charles Ramsay, known and respected across the country for his legal knowledge, appeared on WCCO Channel 4 News last night to provide his analysis of the recent Supreme Court decision in Missouri v. McNeely.

While prosecutors are publicly downplaying the impact of the decision, Ramsay explained how this broad reaching decision will affect not only blood test cases, but also breath and urine cases, and that law enforcement agents will need to quickly change their current procedures or risk having all test results thrown out of court.

You can watch the video of his interview below:



Ramsay Law Firm's Own Charles Ramsay Discusses Missouri v. McNeely on Eyewitness 5 News

Charles Ramsay appeared on KSTP Eyewitness 5 News last night to discuss the recent Supreme Court decision in Missouri v. McNeely and provide his experienced analysis.

The article associated with the interview does a good job of laying out the basic facts of the McNeely case, as well as discussing the legal holding in the case. We'd suggest reading it.

Make no mistake - this decision will have a tremendous impact on all future DWI cases. This case marks an important shift towards a stricter interpretation of our Constitution's Fourth Amendment, upholding personal privacy rights against the steady onslaught of decisions that have steadily eroded our constitutional protections in the name of "efficiency."

A healthy respect for everyone's privacy does nothing to prevent law enforcement from doing their jobs - instead, it ensures that fewer innocent people will be subjected to intrusive searches on the whim of police officers. Hundreds of DWIs may be thrown out of court as a result of this decision, but in the long term, the legal system will be further strengthened and we will see less examples of "rogue" cops who would like to act with as little judicial oversight as possible.

Expect much more litigation in the aftermath of the McNeely decision, as courts nationwide (including Minnesota) come to terms with exactly how far-reaching the impact of this decision actually is.

Here's the video:

Minnesota's DWI Test Refusal Law: Crafting New Defenses

Completely winning a DWI case requires a lot more work than most people realize, and a lot more smarts than most people give credit for. But it also requires a special brand of creativity.

Recently, we used what we like to call, “Judo Lawyering” (exploiting a legal doctrine designed to assist prosecutors in order to undermine the State’s own case) to win our client’s test refusal case. The facts: our client, arrested for DWI, did not answer the officer when asked if she would submit to a blood, breath or urine test. Under the common interpretation of Minnesota’s DWI laws, the officer deemed her “unresponsiveness” a refusal to submit to testing, revoked her driver’s license for one year, and had her charged with the crime of refusing to submit to DWI testing.

At first glance, the odds were stacked against us. Most prosecutors will tell you (repeatedly) that the law regarding test refusal in Minnesota is clear: A refusal need not be indicated by express language, but can be indicated by conduct, lack of conduct, or almost anything in between. Of course, this means that failure to respond to a test request is typically considered a refusal.

However, we’re never ones to accept a case at “first glance.” Instead of folding, we challenged the revocation at the Implied Consent Hearing by raising a creative theory of defense: our client, although conscious at the time of her arrest, was incapable of withdrawing her consent – and thus could not refuse. We even brought in an expert to testify that our client was suffering from a Post-Traumatic Stress/Anxiety Attack at the time the officer made the request.

This defense was based on a little known provision of the Implied Consent Law, designed to allow peace officers to take a driver's blood or urine without their consent, a provision usually used against unconscious or semi-conscious drivers (even driver’s conscious enough to say “no”).

We used this provision of the law to our client’s advantage. After carefully, creatively and persuasively presenting our argument, the court agreed with us and ruled that because of her anxiety attack, our client was incapable of refusal – throwing out the test refusal entirely and restoring her driving privileges.

Sometimes a little creativity can go a long way.


The Future of Minnesota's DWI Law: How the McNeely Decision Will Affect DWI Arrests Here At Home

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.

Minnesota's DWI Test Refusal Law in Review: Why the Crime of Test Refusal is Currently Considered Constitutional

In 2009, the Minnesota Supreme Court upheld the DWI test refusal law in the case of State v. Netland 762 N.W.2d 202 (Minn.2009). In doing so, the court placed all its emphasis on the “fact” that alcohol in a driver’s bloodstream “rapidly” and “naturally” dissipates, reasoning that law enforcement would never have enough time to obtain a warrant for a blood, breath, or urine test before the evidence of alcohol consumption was destroyed.

Wait, a warrant for a blood test? As strange it is may sound, under the Constitution police are required to obtain a warrant prior to a chemical test for intoxication, because taking a blood, breath, or urine test is considered a “search” of your body, with all of the same Fourth Amendment protections as a search of your home. The case of Skinner v. Ry. Labor Exec. Ass’n, decided by the SCOTUS in 1989, makes that clear.

(The next four paragraphs are a very, very abbreviated explanation of how the Fourth Amendment applies to DWI chemical tests. If you already know this information, or just don’t have any interest, feel free to skip ahead.) Warrantless searches of any type are presumed unreasonable - meaning that when a search performed without a warrant, the court will apply the “exclusionary rule” and deny the state the ability to present any evidence obtained as a result of the warrantless search in court. This “fruit of the poisonous tree” doctrine exists to ensure that law enforcement and prosecutors respect the protections that the Fourth Amendment provides against police intrusions.

Now, the law is never that simple, and even though the Constitution says that a person’s right to be secure from warrantless searches and seizures, “shall not be violated” in reality the courts have crafted numerous exceptions to the warrant requirement over the years. One big exception - the one relied upon in the Netland case and the one currently being analyzed by the SCOTUS - is the “exigent circumstances” doctrine.

Long story short (too late?) the “exigent circumstances” doctrine recognizes that if crucial evidence will likely be destroyed in the time it would take for law enforcement to obtain a warrant, police have the right to go ahead and execute their search without one (after the fact, the police will have to prove that they had probable cause to perform the search). Generally, the courts are expected to review these types of warrantless searches under a “totality of the circumstances,” weighing the likelihood that the evidence would have been destroyed against the timeframe it would have taken law enforcement to obtain a warrant. This is the type of careful balancing that courts are good at, and the type of judicial oversight that has been used since at least 1966 and the SCOTUS case of Schmerber v. California.

However, in the Netland case, the Minnesota Supreme Court decided that there was no need to weigh anything - they ruled that every time a driver has any alcohol in their system, there is a “single factor exigency” that eliminates the need to even consider obtaining a warrant. Rather than address the “totality of the circumstances” test of Schmerber, the court essentially sidestepped the issue and created a new categorical exception to the Fourth Amendment.

That’s the current state of Minnesota law - no warrant needed, no questions asked. Which also means that Minnesota’s test refusal law is currently constitutional - there is no harm in criminalizing a driver’s refusal to submit to a search because the search can go forward whether the driver consents or not.
The McNeely case can go one of two ways. The SCOTUS can either agree with the Netland majority and say that, “the evanescent nature of the evidence creates the conditions that justify a warrantless search. It is the chemical reaction of alcohol in the person’s body that driver the conclusion on exigency . . .”

What is more likely is that the McNeely case will agree with the dissent in Netland, which stated, “I believe it is unwise to say that law enforcement is per se justified in taking blood-evidence evidence without a warrant in DWI cases. Rather, we should maintain our jurisprudence that requires the State, under a totality-of-the-circumstances analysis, to explain why law enforcement could have reasonably believed the blood-alcohol evidence would disappear before a warrant could be obtained.”

If the U.S. Supreme Court rules the way we expect, the “single factor exigency” doctrine will get drop kicked into history, and police in Minnesota (as is the case in many other states) will have to learn how to obtain telephonic warrants from on call judges before administering blood, breath or urine test. And as we’ll discuss in the next post, that will have a huge impact on both how DWIs are handled in Minnesota, and how the courts view the crime of test refusal.

Minnesota's DWI Test Refusal Law Under Scrutiny: Will Missouri v. McNeely Fix a Broken System?

Most states increase the license revocation penalties for drivers who refuse to submit to alcohol testing, but Minnesota Impaired Driving Law straight up makes it a crime for a driver to refuse to submit to testing. We challenged the constitutionality of this law back in 2009, but in a 4-3 decision the Minnesota Supreme Court upheld the law  - holding that it was okay to coerce drivers with the threat of jail, solely because alcohol “rapidly and naturally dissipates” from a person's body. But in a case recently argued before the Supreme Court of the United States (“SCOTUS”) the highest court in the land could very well reshape how Minnesota looks at DWIs.

What is the current state of Minnesota law regarding DWI arrests and the crime of test refusal, and how could the SCOTUS change it? What impact could the McNeely decision have on pending and future DWIs? And how is the highest court in the land likely to rule? Stay tuned - we’ve got the answers, but couldn’t possibly address them in one blog.

DWI Defense Issues- 2012 Year in Review

Earlier this year we posted our prediction for the top-10 DWI issues for 2012. As it turns out, we hit on four of the top five. Here are the top five DWI defense stories of 2012.

1.     DWI Vehicle Forfeiture – The Minnesota   Supreme Court ruled our way on a forfeiture issue in Patino v. One 2007 Chevrolet. Attorney Dan Koewler of our firm wrote the Amicus position supporting Patino. This case made it more difficult for the government to take vehicles in DWI cases.

2.      Source Code – The Minnesota Supreme Court issued the long awaited ruling in the consolidated Source Code cases related to the Intoxilyzer 5000EN breath test cases. In a 4-3 ruling, the Court held that this DWI breath testing device is good enough to be admitted into evidence. 

Despite the June order, many cases are still being litigated at the trial court level. Others were resolved after prosecutors were forced to offer very favorable deals. 

One sticking point is the so-called EPROM issue that we discovered in the pre-trial discovery. The BCA failed to properly transfer the tested and validated software onto the computer chips which operate and control each Intoxilyzer 5000 breath test machine. Because of this, we believe the breath test results are not admissible in a case unless the government proves in each case that the breath test machine in that case contains the software tested and validated by the BCA.

3.     Urine Testing – The Minnesota issued another opinion in a DWI case addressing DWI urine testing. In State v. Tanksley, the court ruled that DWI drivers are not entitled to a so-called Frye hearing when challenging urine testing. Although some prosecutors and judges had hoped this ruling would put an end to urine testing challenges, we continue to prove them wrong with a series of victories, one of which we reported here.

4.     Uncertainty of Measurement – Although this issue continues to percolate, our firm has reviewed documents showing the BCA recognizes the need to establish the measurement error in each of its testing methods (blood, breath and urine) and in fact is preparing to do so. Courts, too, are recognizing the need for the government to prove alcohol test results within the measurement uncertainty. We are able to capitalize on this, as we did with this victory.

5.      DataMaster – In 2012 Minnesota finally stopped using the Intoxilyzer 5000 for breath testing and began exclusive use of the DataMaster breath test machine. We prepared ourselves last year by attending several DataMaster courses, including completing training at the manufacturer’s facility in Mansfield, Ohio. 

Although the DataMaster is a pretty good alcohol breath test machine, this year we discovered documents that the Minnesota crime lab is having difficulty with the machines. See the video Fox9 reported our discovery earlier this year. We will keep you updated as we continue to litigate these cases.

Next up:

Looking forward to 2013: Our predictions.

Chuck Ramsay Discusses the Intoxilyzer 5000 on Fox 9 News

Chuck Ramsay of our own Ramsay Law Firm again appeared on Fox 9 News to provide his experience and insight regarding the effects of the recent Supreme Court decision dealing with the Intoxilyzer 5000EN, and what effect this decision will have on pending and future DWI cases.

Watch the video to see Ramsay talk about what types of evidence can be presented to a jury, what wight a juror should give Intoxilyzer breath test result, and the importance of relying upon good scientific principles when enforcing our DWI laws.



Minnesota Supreme Court Source Code Decision: First Impressions

We’ve had some time to review the recent 4-3 decision regarding the Intoxilyzer 5000EN, and have already received a lot of phone calls and emails regarding the impact this decision will have on both our clients’ cases and the thousands of breath test DWI’s that are pending throughout the State of Minnesota. While it’s too soon to provide a detailed analysis, some obvious points jump out of this decision.

For reference, you can again find the decision here.

Judicial Activism: This decision shows a clear bent towards judicially rewriting a key component of our DWI laws. The four justice majority ignored the plain language of our test refusal statute in this decision, which will have a huge impact on wrongful convictions and inappropriate license revocations.

To explain - our law currently makes it a “refusal” for a driver to not comply with numerous scientific protocols - not providing 1.1 liters of air or not blowing at a rate of .15 liters per second, for example. If these conditions are not met, the test is deemed “deficient” and the driver is charged with refusal. Our legislature had strong, solid reasons for writing the law this way, and ensuring that the objective calculations of a machine, versus the subjective interpretations of a police officer, would determine who was and was not providing a valid breath sample.

However, when presented with unrebutted evidence that the BCA not only knew that the Intoxilyzer had a fatal flaw that incorrectly deemed samples as deficient, but also intentionally refused to implement a software patch that would correct the error, a majority of our Supreme Court chose to simply rewrite the refusal statute. Now, even though everyone knows that the Intoxilyzer has a huge software bug affecting so-called “deficient” samples, the Court opened the door to present the testimony of a police officer to explain that the driver simply wasn’t blowing at a rate of .15 liters per second, or didn’t actually provide a full 1.1 liters of air. Besides the pure absurdity of expecting anyone to be able to make those determinations, it is all but certain that every officer is going to testify in this manner in every case - rewriting our laws and covering up a known software error that has gone uncorrected for years.

Hiding the Ball: This decision also takes the troubling step of actively hiding known software errors from every jury in the state. Everyone has the Constitutional right to present a complete defense against the state, in order to prevent our system of justice from turning into a system of sham trials. However, in this case the majority held that evidence of errors with the Intoxilyzer, such as the effect that radio frequency interference has on test results, or the fact that the machine itself is only accurate within a 10% range of values, are all inadmissible. A jury, asked to determine if someone is guilty or innocent based upon a single printout, will never be allowed to hear this evidence before being asked to decide how much weight to give an Intoxilyzer test result.

Future Due Process Concerns: This narrow 4-3 decision creates the appearance that Intoxilyzer test results are now virtually unassailable in a court of law. That’s not entirely true - there are still numerous defenses that can be raised against test results produced by this outdated and flawed machine. What’s troubling about this decision is not just the impact it has on current Intoxilyzer cases . . . but what impact it will have on future cases. What will happen in the future if the State wants to hide even more evidence from a jury, or when the State needs to have our courts rewrite another statute to make it easier to convict. In those situations (and if the past is any indication, they will certainly arise) the State can simply point to this decision as support for the conclusion that hiding evidence and bypassing our legislature are the appropriate ways to uphold the constitution.



The Minnesota Supreme Court has just released its 4-3 opinion regarding the use of the Intoxilyzer 5000 in thousands of Minnesota DWI cases.

You can view the opinion here. We'll be providing a detailed analysis of the 38 page decision once we've had an opportunity to carefully review it, but upon first reading, the decision is best summed up with a quote from Justice Page (dissenting):

"The practical result of the court’s holdings is that defendants will be unable to challenge Intoxilyzer 5000EN results. Despite evidence that the test has a margin of error, that radio frequencies from cell phones can disturb the accuracy of the test, and that the test may erroneously produce a deficient sample, a defendant may not raise the source code as a potential cause of an inaccurate or deficient sample. Denying the accused an opportunity to raise source code issues effectively eliminates the accused’s opportunity to challenge the results."

Stay tuned.




We’ve just received word that the Minnesota Supreme Court intends to release its decision regarding the use of the Intoxilyzer 5000 tomorrow, June 27, 2012.

Be sure to check back tomorrow mid-morning. We’ll be posting the entire decision here along with our analysis of what it means.


Minnesota Society for Criminal Justice Annual DWI Seminar June 22, 2012

MSCJ, the premier Minnesota criminal defense lawyers organization representing those charged with DUI, announces its annual continuing education seminar. 

This is a must attend event for every Minnesota DWI Lawyer, particularly those representing clients with source code cases.

WHERE: The Northland Inn (soon to be Marriott Northwest) 7025 Northland Drive Brooklyn Park  (take Boone Avenue exit off I-694 and Hotel is just north).

WHEN: June 22, 2012.

This seminar is for Defense Attorneys Only (no full or part-time prosecutors or AGs) - CLE and Ethics Credits To Be Applied For - Materials on CD Only - Laptops Welcome - Speakers and Topics Subject to Change
8:30 am   -  Registration and Welcome
9:00 am   -  Source Code:  The Path Forward - MSCJ Source Code Litigators
                   Named Attorneys of the Year by "Minnesota Lawyer" magazine: 
                   Marsh Halberg, Pam King, Lee Orwig, Chuck Ramsay, Jeff Sheridan
10:00 am -  Science of Breath Testing Intoxilyzer & Datamaster:
                  Tom Burr Forensic Scientist                                                             
11:15 am -  Defending DWI Cases In Outstate Minnesota - MSCJ Outstate Panel:  
                   Barry Hogen, Jason Kohlmeyer, Pam King, Mike Samuelson, Chris Stocke 
1:00 pm  -   Caselaw and Legislative Update:  Doug Hazelton
2:00 pm  -   Attacking the Forfeiture:  Jim Ventura
2:45 pm  -   Ethics in DWI and Criminal Cases (the Quiz Show):  Tom Plunkett
3:45 pm  -   Defending DWI Cases in the Metro Area - MSCJ Metro Panel: 
                   David Ayers, Mike Brandt, Jill Oleisky, David Risk, Richard Swanson
4:30 pm  -   Adjourn for Social Hour
Keep reading for APPLICATION...

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Attorneys Attend DWI Breath Test Course

This week, we headed down to Mansfield, Ohio to get some first hand knowledge about Minnesota's new breath test machine, the DataMaster. Today, we toured the plant and attended several lectures regarding the science behind infrared spectrometry and fuel cell detection of alcohol. 

Tomorrow we get to grill several of the manufacturer's employees regarding the specifics of the machine that will be used in Minnesota.

Stay tuned- we'll be posting more about our impressions and analysis of Minnesota's new breath testing device in the upcoming weeks.


Minnesota Intoxilyzer Source Code Update: Minnesota Supreme Court Schedules Oral Arguments.

 Today the Minnesota Supreme Court has released the date for En Banc Oral Arguments regarding the consolidated Source Code litigation. Oral Arguments have been scheduled to be heard on December 1, 2011, at 9:00 a.m. at the State Capitol Building.

View all the briefs leading up to the Oral Arguments here.


Putting the "Grand" in Grand Jury: Citizen Panel Protects Intoxilyzer Whistleblower.

We’ve told you about problems with the Intoxilyzer 5000, Minnesota’s breath test machine. In 2008, Minnesota Lawyer reported on how we even uncovered a state secret that errors in the breath test machine’s software wrongly convicted people of test refusal. The State tried to keep it secret and continued to use the machine

This type of conduct occurs, not only in Minnesota, but in other states as well. Unfortunately, officials are rarely held accountable. It seems a group of Texans are changing that in Houston.


When a technician blew the whistle on Houston’s breath testing program – which, coincidentally, also uses the Intoxilyzer 5000 – her supervisors did nothing. So she quit, putting many breath test cases in jeopardy.

According to the blog, Life at the Harris County Criminal Justice Center -- An Insider’s View of What is Really Happening in the Harris County Criminal Courts, the Harris County District Attorney’s Office didn’t like this. They went after the former breath technician by convening a Grand Jury in an attempt to indict her for a crime.


Something went wrong along the way for the prosecutors. The Grand Jury ordered the bailiffs to keep the prosecutors out. As Murray Newman writes,

In legal terms, the proper response to this is "Holy Catfish, Batman."

Prosecutors are always in the room with Grand Jurors when they are interviewing witnesses. The only part they are excluded from in a Grand Jury is when the grand jurors deliberate. The Grand Jurors excluding the prosecutors from the testimony is kind of the equivalent of the President being booted out of a Cabinet meeting. It just doesn't happen. I mean, ever.

The prosecutors freaked and brought a motion before a judge to order the jury to allow them in. After the judge refused, the prosecutors appealed. Last week the court of appeals denied the motion!


It seems the Grand Jury wanted the prosecutors arrested according to the prosecutors’ briefs to the appellate court:

Just prior to being escorted out of the grand jury room by the bailiff, I observed the bailiff in her office and overheard the bailiff speaking in a telephone conversation. The bailiff said to the person on the phone, "They told me to arrest the DAs." From that, I assumed that the grand jury had instructed the bailiffs to arrest Mr. Hobbs, Mr. Morris and me if we remained in the grand jury room while the grand jury was attempting to question the witness.

See the local ABC television story for more details.

Amanda Culbertson, the breath testing employee who blew the whistle on shoddy maintenance of the breath test machines, is a hero and so are those on the Grand Jury. The prosecutors are scared, and may be guilty of criminal behavior themselves. At a minimum they’re guilty of dereliction of duty. Instead of ensuring that justice is served by seeking to convict the guilty based only on forensically sound evidence, they make a mockery of the judicial system and embarrass themselves and other good prosecutors by failing to uphold their constitutional duties.

Meanwhile in Minnesota, we await someone like Amanda Culbertson to step forward….

Minnesota Intoxilyzer Source Code Update: The Briefs Are In.

The last source code brief is in! The Source Code Coalition filed its reply brief on behalf of thousands of Defendants and Drivers with the Minnesota Supreme Court on October 17, 2011.  This is the last of the briefs to be submitted to the Minnesota Supreme Court on this issue. We anticipate the Supreme Court will schedule a date for oral argument soon. 

Here are the other briefs filed in this matter pending before the Supreme Court:

Appellant’s Brief and Appellant’s Appendix and Index, filed August 29, 2011;

Brief and Appendix of Respondent (State of Minnesota Prosecution Liaison Counsel), filed September 28, 2011;

Respondent’s Brief and Appendix (Commissioner of Public Safety), filed October 3, 2011;

Brief and Appendix of Amicus Curiae, CMI of Kentucky, Inc., filed October 10, 2011; and,

Appellant’s Reply Brief, filed October 17, 2011. 

Minnesota's Implied Consent Law: Is It (Again) Unconstitutional?


Shoot First – Ask Questions Later

Under a shoot-first-ask-questions-later philosophy, the Minnesota Commissioner of Public Safety can take away drivers’ licenses without first conducting a hearing on the propriety of the revocation pursuant to the Minnesota Implied Consent Act. Although drivers may challenge the license revocation in court, it can take months before the case goes to court. Even in those cases where a judge ultimately orders license reinstatement, the damage is already done. There is no way to “undo” the loss of a license during the wait. But a major overhaul to the law may have so radically changed the legal landscape that the law is no longer constitutional.

Previous Constitutional Challenges to Minnesota’s Implied Consent Law

The Minnesota Supreme Court has found the basic premise of pre-hearing license revocation to be constitutional. In balancing the interests of public safety against the rights of individual drivers, the Minnesota Supreme Court upheld in Heddan v. Dirkswager (1983) that there were sufficient procedural safeguards to protect the private interest of the driver. At the time those protections included (1) the relatively short revocation period; (2) the immediate availability of a work permit; and (3) a speedy hearing.

After the legislature tinkered with the statute, the Minnesota Supreme Court warned the legislature in the 1994 Davis case not to further erode the procedural safeguards or it would strike down the law as unconstitutional. Although the court upheld the statute, it was troubled by the fact that “a court cannot undo an erroneous revocation,” because “full retroactive relief cannot be provided” and “even a day’s loss of a driver’s license could inflict grave injury upon a person.”

Minnesota Supreme Court: Law Violates Constitution

While it was not “prepared at [that] time to conclude that the legislation in question violate[d] either federal or state due process guarantees,” in 2003 the legislature removed drivers’ right to a prompt hearing. For the first time, the Minnesota Supreme found the law unconstitutional in Fedziuk v. Commissioner of Public Safety (2005), holding that that the law offended the constitution’s right to due process.

New, Radical Changes

Despite the Supreme Court’s early warnings and then later finding the Implied Consent Act unconstitutional, the 2010 legislature radically changed the implied consent law. In doing so, the legislature increased the duration of a first time misdemeanor revocation from 90 days to one year and completely removed the right to a work permit for those with an alleged alcohol concentration of .16 or more.

The legislature attempted to give the appearance of softening the blow to drivers by providing for “zero day eligibility” for ignition interlock. This is just a mirage. First, the administrative process is so unwieldy the Department of Public Safety has been unable to provide anything close to immediate reinstatement, even with the installation of the interlock devices. Second, the cost is prohibitive for most. While the costs vary, drivers must pay hundreds of dollars in fees for installation and monitoring to private carriers. They must pay a $680 reinstatement fee. Finally, they must fork over a four digit amount in advance for a one-year, non-cancellable insurance policy. Presumably, even if a court finds the revocation improper, it would be impossible to undo the erroneous revocation and provide full retroactive relief. Not only would the interim loss of the license inflict injury, but the driver would lose thousands in costs of the ignition interlock program and non-cancellable insurance. 

The Risk of Erroneous License Revocation is Higher Today Than Ever

Finally, the risk of erroneous deprivation is higher today than ever. The state continues to use the Intoxilyzer 5000 for DUI breath testing, which does not always work properly according to the judge in the consolidated source code case. Or, it relies on DUI urine testing using procedures not accepted by the scientific community – and not used at all in any other jurisdiction in the entire country.

Our firm is raising this issue in almost every DUI case.  There is no doubt it will eventually come before the Supreme Court.  Will it find the law unconstitutional? 

Pt 2: Imprecise DWI Tests: Good Enough for Government Work?

Last week we told you that the scientific community requires blood, breath and urine tests be reported not as a certainty, but with a confidence interval that has a high probability of containing the true alcohol level. (This is not to be confused with results involving mistakes or blunders; uncertainty assumes that no mistakes or blunders have been made.) Therefore, due to the uncertainty in every measurement, the state must report a DWI alcohol test results with a range, not as a single number.

This raises some interesting questions for drivers in Minnesota who face criminal penalties or civil license revocation, or vehicle forfeiture.

Are there established confidence intervals for Minnesota DWI tests? 

Neither the Minnesota Commissioner of Public Safety nor the Minnesota Bureau of Criminal Apprehension (BCA) has published established confidence intervals for any DWI test in Minnesota (blood, breath or urine). 

Despite the 2009 National Academy of Science Report to Congress which requires that each lab analyze and establish confidence intervals for each type of test, Minnesota has failed. Nationally renowned attorney, Ted Vosk, has advocated with some success that no test result should be admitted as evidence unless it meets these criteria. (Note to practicing attorneys, judges and scientists: I highly recommend you read Mr. Vosk’s work along with the NAS report to get a better understanding. See others including Justin McShane.)

How can I use measurement uncertainty in my case?

One well respected scientist has analyzed the data from Minnesota’s Intoxilyzer 5000 to establish a confident interval. Analyzing test data provided by the Minnesota BCA of more than 44,000 breath tests, Rod Gullberg determined that the uncertainty of measurement of a .08 breath test in Minnesota’s Intoxilyzer 5000 EN is approximately nine percent. Rod G. Gullberg, Breath Alcohol Measurement Variability Assessment with Different Instruments & Protocols, 131 Forensic Science International 30 (2003).

This percentage increases with the level of alcohol. At an alcohol concentration of 0.20, the measurement uncertainty is even greater. One must have a thorough understanding of complicated mathematical and scientific concepts to use his formula. For more information, see his work at the Borkenstein Course.

So what does this mean for drivers with alcohol concentrations close to critical levels? The Minnesota legislature has mad .04, .08, .16, .20 critical levels of alcohol concentration.  In addition to other defenses, measurement uncertainty should be employed to defeat blood, breath and urine testing.

The Source Code Shuffle - How the District Courts Are Handling the Intoxilyzer 5000 Appeal.


Currently, the consolidated source code litigation, originally presided over by Judge Abrams, is up on appeal before the Minnesota Supreme Court. This has caused more than a little confusion in the various district courts, as each judicial district tries to decide how to proceed with DWI cases based on Intoxilyzer 5000EN breath test results.

Most counties seem to be of the opinion that they need to stay all proceedings pending a final decision by our Supreme Court. In our opinion, this is not only the smart option, but the only legal one. Minnesota Rule of Civil Appellate Procedure 108.01, subd. 2 makes it clear that our lower courts are prohibited from doing anything to affect the current source code appeal - which includes setting cases on for trial (cases that could then be “re-appealed” and effectively double the judicial system’s workload).

While most counties have followed this route, there are some exceptions - notably Anoka and Ramsey counties. In Anoka County, all of the previously stayed cases were returned to active judicial calendars after Judge Abrams issued his order. However, after the Minnesota Court of Appeals granted review of that order and the Supreme Court granted expedited review, Anoka County chose to reverse course - and continued to stay all Intoxilyzer breath test cases.

Ramsey County, on the other hand, who also originally stayed all of its Intoxilyzer cases, recently issued an order lifting that stay and ordering all cases to proceed. In light of Rule 108.01 and the currently pending motion to stay proceedings pending in front of the Supreme Court, it is unclear how much progress will be made on these cases . . . but as of today, every pending Intoxilyzer case is being pushed back on to Ramsey County judicial calendars.

It will be interesting to see how the situation in Ramsey County progresses. Maybe Ramsey County will reverse course in the same way that Anoka did (the coalition emailed the Ramsey County Court objecting to the new order). Or maybe Ramsey County will set hundreds of cases for trial, only to be ordered by the Supreme Court to cancel everything and wait for the conclusion of the appeal. Only time will tell, but for now, defendants and attorneys with Ramsey County DWI cases should be prepared to resume their cases while the final determination of whether Intoxilyzer test results are admissible is still up in the air.


Breaking News: Supreme Court Grants Accelerated Review of Source Code Appeal.

The Minnesota Supreme Court has accepted accelerated review of the appeal that was made of Judge Abrams' Order as part of the consolidated Source Code litigation. This means that rather than arguing this case to the Minnesota Court of Appeals before appealing to the Minnesota Supreme Court, the case is being immediately sent to the highest court in the land.  This should ensure the speediest possible resolution to the consolidated challenge to the Intoxilyzer 5000EN.

A copy of the Order can be seen here.


Refusing to Submit to DWI Testing: Minnesota Supreme Court Reverses Conviction

Recognizing that Minnesota’s DWI test refusal law is more complicated that meets the eye, this week the Minnesota Supreme Court reversed the conviction of a man convicted of refusing to submit to a DWI test in State v. Koppi. The Court ruled that the trial court had given an erroneous jury instruction which did not accurately convey the law. The Court granted the driver a new trial as the error was not harmless. 

The case supports our law firm’s position that the criminal test refusal law is not as simple as, “did the person refuse to submit.” Just look at some of our previously blogs, including Refusing to Submit to a Blood Test Not Always a Crime In Minnesota

There are numerous other facts that a jury must find as well before a driver can be convicted of test refusal. Koppi says that the criminal refusal law, Minnesota Statute section 169A.20, subdivision 2, incorporates the requirements from section 169A.51, of the Implied Consent Law. It specifically held, “Refusing a chemical test is not a crime, therefore, unless it can be proven beyond a reasonable doubt that an officer had ‘probable cause to believe the person was driving, operating, or in physical control of a motor vehicle’ while impaired.”

Koppi held that Minnesota’s standard jury instruction for DWI test refusal does not accurately convey the law. The trial court in Koppi read the following to the jury:

Probable cause means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.

10A Minn. Dist. Judges Ass‘n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp. 2009).

The jury instruction contains three flaws:

1.            It does not require the officer to recite actual observations and circumstances supporting a finding of probable cause;

2.            It fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer;

3.            The instruction erroneously requires that an officer believe a driver was “more likely than not” driving while impaired, rather than the proper “honest and strong suspicion” standard.

Some defense attorneys may believe that amending the jury instruction from “probable cause” to “honest and strong suspicion” may be detrimental to the driver. But the new standard does not lower the standard; it merely gives greater guidance to the jury, taking away mathematical probabilities. 

Although the court did not provide an actual jury instruction to be used, the court’s guidance on developing a new standard included the requirement of “probability.”

The “honest and strong suspicion” standard requires more than mere suspicion, but less than the evidence required for a conviction. Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.

The court left for another day whether the trial court could substitute its own determination for that of the jury whether the driver had been given sufficient time to consult with an attorney.  Meanwhile, the defense will continue to challenge Minnesota's test refusal law, including whether the statute is unconstitutionally vague and ambiguous.  See Minnesota's Test Refusal Law: Findings a Loophole in a "Knotty" Law.

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Minnesota Intoxilyzer Source Code Update: Commissioner of Public Safety Files Petition for Accelerated Review.

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.


Breaking News: Review Granted in Consolidated Source Code Litigation

The thousands of consolidated DWI cases stemming from tests on the Intoxilyzer 5000EN, previously heard by Judge Abrams in the First Judicial District, have officially been accepted for review by the Minnesota Court of Appeals.

In an Order filed April 28, 2011, the Court of Appeals held that there were “compelling reasons” to grant review of Judge Abrams’ Order. While this case might ultimately be forwarded directly to the Minnesota Supreme Court, we are currently preparing to present our arguments to the Court of Appeals.


Going Into Effect July 1: The Law of Unintended Consequences

Minnesota’s expansion of ignition interlock devices this summer may cause more problems than state officials anticipated. You might remember our previous blog about the earlier stages of this program, but now the “pilot” project is official. As of July 1, 2011, first time DWI arrestees may be required to install the devices in their vehicles in order to get their drivers’ licenses back in a reasonable period of time.

State officials might see the interlock device as a panacea for repeat DWI offenders (see below), but what I see are all of the potential problems that will arise. 

Minnesota Lawyers front page story this week, headlined, “DWI Law Changes Worry Lawyers,” cited Bill Lemons, the traffic safety resource prosecutor from the Minnesota County Attorneys Association, as saying,

[T]he program helps offenders get their lives back on track sooner because they can drive right away, and the ignition interlocks will mean safer roads for everyone else. In addition, it ensures offenders will drive legally instead of driving with a revoked license.

“We would like to see all [of those offenders] get the ignition interlock,” said Lemons. “The research shows that the program is only effective when the device is in the car. Absent that behavior changing program, the likelihood to re-offend goes right back to where it was.”

Defense attorneys paint a less-rosy picture. Jeff Sheridan, a criminal defense attorney from Eagan, told the paper the law fails to take into account that not every other state has an ignition interlock program. 

What about the guy who is up here on business and gets arrested and his state doesn’t do interlock?” Sheridan said. “Is his home state is required to enforce the revocation? Is he supposed to put [a device] on his car anyway?

“I encourage the interlock device [with my clients] but assuming that there are going to be no problems is a bit of a step,” he said.

Kelly Keegan, an Anoka defense attorney, pointed out other limitations to the program, including the hefty price of participating - costs that may prevent many from using the device at all.

Minnesota Lawyer asked me about a bill pending before the legislature which would significantly increase the driver’s license revocation period for repeat offenders and for those with an alcohol concentration .16 or more.  As I told the weekly publication, the legislature’s tinkering will have unintended consequences. As just one example, the current version of the bill acts as an incentive for drivers to refuse testing, which is something that State undoubtedly wants to avoid.

Attorney Mike Bryant, a fellow blogger, brought up other interesting questions earlier this week, including:                   

                        -How well do these ignition interlock devices actually work?

-Who gets these government contracts? As Mike writes, “It can be a nice money making monopoly for some companies.”

I will be watching this issue very closely, including how other states have handled the problems that go hand in hand with ignition interlock. But for now, I agree with Minnesota Lawyer reporter Patrick Thornton, “Come this summer, DWI defense lawyers are going to be busy.”

Minnesota Intoxilyzer Source Code Victory: Why Deficient Samples Must Be Dismissed.

Judge Abrams ruled at the conclusion of the consolidated source code hearings that the Intoxilyzer cannot reliably determine deficient samples. Unlike most Intoxilyzer test results, which were deemed admissible, Judge Abrams ruled that test results reporting a sample as “deficient” should not be allowed into evidence. Specifically, he stated that:

In cases in which the Intoxilyzer 5000EN ... reported a “Deficient Sample,” the Source Code of the instrument does impact the reliability, solely, of this result. Evidence of such cases of a “Deficient Sample” test report should not be allowed unless other evidence exists which provides reasons and/or observations of testing which supports the sample being deficient.

Order, para. 2 (our emphasis).

Judge Abrams explicitly found that the Intoxilyzer cannot properly determine a deficient sample - and therefore does not support a charge of test refusal. In the order, it appears that the door has been left open for the government to bolster this faulty test result with “other evidence” that the test subject “refused” to provide a valid sample. However, the actual state of the law in Minnesota says the opposite - under Minnesota law, only a breath test machine that determines a deficient sample, not the officer.

Minnesota’s DWI laws make it a crime to “refuse” alcohol testing, which is defined as a “failure of a person to provide two separate, adequate breath samples in the proper sequence . . .” Minn.Stat. § 169A.51, subd. 5(c) (2010). A sample is defined as “adequate” if, “the instrument analyzes the sample and does not indicate the sample is deficient.” Id., subd. 5(b). A plain reading of these statutes means that only the Intoxilyzer test result, and not the opinions of an officer, determine if a person actually “refused” to provide an adequate sample.

We know, because we recently won on this issue in front of the Minnesota Court of Appeals, in Hansen v. Comm’r of Pub. Safety. In Hansen (a “deficient sample” case) the trial court judge ruled that the source code was irrelevant, because “other evidence” besides the Intoxilyzer test result proved that our client refused to provide a valid sample. We disagreed, and appealed. The Court of Appeals reversed the trial judge’s decision in favor of our client.

In Hansen, the Minnesota Court of Appeals said,

We have held that an identically worded statute “makes it clear that the Intoxilyzer, not the police officer, is to determine the adequacy of a breath sample.” Genia v. Comm'r of Pub. Safety, 382 N.W.2d 284, 286 (Minn.App.1986). And we found no statutory authority that, once the breath test began, “a refusal can be based on an officer's conclusion that a driver is not making a good-faith effort to provide an adequate sample.” Id.

Hansen at *4.

So, it’s clear that only a breath test machine (for now, the Intoxilyzer 5000EN) can determine whether a breath sample is deficient. Any officer’s subjective opinions are irrelevant. What this means is that the government can only prove a “refusal by conduct” charge by presenting a test result that lists the sample as “deficient.” And as long as the State continues to use the outdated, broken and error-prone Intoxilyzer, any “deficient” result cannot be admitted into evidence.

Minnesota Continues to Utilize Broken Intoxilyzer

Judge Abrams noted that Minnesota officials and the BCA have been aware of the broken Intoxilyzer since at least 2006, but have refused to install corrected software.

The slope detection software … does reject under somecircumstances samples which are valid. … In situations where this result has been reported due to slope acceptance criteria in the 240 version of the software, the BCA could have implemented corrective software but chose not to update the instruments. This conclusion is confirmed by the testimony of the BCA witnesses.


Now that Judge Abrams has made official findings that the Intoxilyzer 5000 software does not work properly and that the BCA has a fix to correct the problem, it would be reasonable to believe we would stop using these broken machines for DWI alcohol testing. 

[T]he BCA was aware from the fall of 2006 onward that a change in the Source Code was made that caused, under some circumstances, previously acceptable breath samples to be rejected. This software, version 240, continues to be used with knowledge of this problem and without change or correction by the BCA.

Surprisingly, Minnesota continues to use these fatally flawed machines to revoke drivers’ licenses and put innocent people in jail. 


Perhaps the answer lies in the arrogance of state officials responsible for the use of the Intoxilyzer 5000EN. According to Judge Abrams:

There is a general perception that perfection and flawless operation is present in the Intoxilyzer and its test results. Those responsible for the operation and maintenance of the device have been defensive and at times outright hostile to the suggestion that problems may exist….

Luckily, we now have the evidence we need to suppress every Intoxilyzer test that reports a “deficient sample,” no matter how long the State continues to use this broken machine. Be sure to stick around for tomorrow’s blog, where we detail how every case where the Intoxilyzer reported a deficient sample should be dismissed . . . and why.

Intoxilyzer Source Code Victory: Judge Rules Machine Cannot Reliably Determine Deficient Samples.

Minnesota continues to use Intoxilyzer 5000 Despite Hundreds of Defective Breath Cases Annually.

Last month, Judge Abrams issued his consolidated Intoxilyzer source code order. In a case directly affecting more than 4,000 Minnesota DWIs – and thousands more indirectly – the court decided that the Intoxilyzer, while suffering from many defects, is not so flawed as to prevent the test results from being admitted into evidence in most cases. In other words, the test results are “close enough for government work,” but drivers’ attorneys are still free to present evidence attacking the results (even this conclusion is currently under appeal).

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

And “deficient samples” are almost always worse than outright failing the breath test. Under Minnesota law, it is a crime to refuse to submit to DWI alcohol testing. The statutes define test refusal as when a machine determines a driver has given a “deficient sample”. We have previously analyzed the crime of DWI test refusal, explaining how it is treated much more harshly than having an alcohol concentration of .08 or more.

We’ve been striving for years to bring these issues into the public spotlight. Now, with Judge Abrams’ order, we finally have the evidence we need to successfully debunk the myth that every driver who provided a “deficient sample” was somehow at fault.

Of course, now that we’ve unmasked these fatal errors in the source code, the State will stop using the Intoxilyzer . . . right? If only life were that simple: stay tuned for tomorrow’s blog, explaining just how long the State has known about these errors, and why they plan to keep on using the broken Intoxilyzer, regardless of its known flaws.

Then be sure  to check back on Thursday, when we will discuss exactly why Judge Abrams' order should results in the dismissal of almost any case where a "deficient sample" was reported.

Minnesota Intoxilyzer Source Code Update: Responses to the Appeal.

Today, the Office of the Minnesota Attorney General on behalf of the Commissioner of Public Safety and Prosecution Liaison Counsel for the State of Minnesota filed responses to the Appeal of Judge Abrams’ Order. The defense trial team appealed Judge Abrams’ Order on March 28, 2011.

You can view the State’s Response and Commissioner of Public Safety’s Response here.

Minnesota DWI Intoxilyzer 5000EN Source Code Arguments


The briefs are in! Today both the state and drivers submitted written closing arguments to Judge Abrams in the consolidated breath test case. The Court will render its decision within 90 days.

Download the State’s Source Code Argument and the Drivers’ Source Code Argument.

Check back soon for feedback about the state’s arguments


Charged with Test Refusal? Don't Let the Man(chine) Get You Down

For years now, we’ve blogged about problems with the Intoxilyzer 5000 - and one problem in particular. In a typical scenario, a driver is arrested for DWI and told that they have to submit to a breath test. They try - and try, and try - but the machine will not accept the sample, and ultimately reports a “deficient sample.” These people are charged with the crime of Test Refusal (always a gross-misdemeanor, sometimes a felony).

In court, the arresting officer will usually say that the driver was trying to “fool the machine” by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown.

The question is “who should the judge trust?” The arresting officer, the driver, or the machine? The answer matters, because if the court chooses to trust the officer, the driver is going to lose; if the judge decides to “trust” the machine, it means that the defense needs to have the opportunity to examine that machine’s source code - and the driver can win.

We recently won a huge case at the Court of Appeals that helps settle the matter. In Hansen v. Commissioner of Public Safety, we convinced the Court that it takes more than the testimony of the arresting officer to convict someone of test refusal - the machine itself needs to be analyzed. This is a potentially huge win for our clients and for anyone else charged with “refusal by conduct.” It means that the Courts are finally beginning to accept what we’ve said all along - the Intoxilyzer is not a perfect machine, and one area where it is prone to failure is when it deems otherwise-valid samples “deficient” for unknown reasons. 

Refusing to Submit to a Blood Test Not Always a Crime In Minnesota

Minnesota is one of few states that actually make it a crime to refuse to submit to chemical testing (most simply to increase the duration of any driver’s license revocation). This has huge constitutional implications - such as violating a driver’s Fifth Amendment right against Self-Incrimination - but can also be misleading.

Despite what every Minnesota police officer will tell you, it may NOT be a crime to refuse to submit to a blood test after you’ve been arrested for DWI.

In fact, if you do refuse to submit to a blood test, and the government charges you with test refusal, we might actually be able to get the charges dismissed. That’s because Minnesota law specifically prohibits drivers from being punished for refusing to submit to a blood or urine test unless another test was also offered.

If an arresting officer told you that you’d be charged with test refusal if you did not submit to a blood sample, he or she was not telling you the whole story. If you were charged with test refusal without being offered a blood test AND either a urine or breath test, you’ve got a very good chance of outright winning your case.

The State Rests: Challenge to Intoxilyzer 5000 Enters the Calm Before the Storm.

At the end of last week, the State finished presenting its evidence in support of the continued use of the Intoxilyzer 5000 to prosecute Minnesota drivers for DWI. All of the evidence has now been submitted to Judge Abrams; it is expected that he will issue an order in early 2011.

It was a long, hard road to get to this point, and far longer than it had to be - if the State had complied with our basic, standard discovery requests years ago, this challenge to the Intoxilyzer would have long since been finished. Instead, the State fought us tooth and nail the entire way: fellow members of the trial team have been to the Supreme Court not once, but twice, demanding access to the software that controls the Intoxilyzer. Our firm spent countless hours litigating the same issue in Federal Court, doing everything we could to ensure that we received actual access to the source code, rather than the sham settlement that was originally reached between the State and CMI.

Once the groundwork had been laid, we pulled together a truly impressive coalition of defense attorneys to help foot the enormous costs that go into a detailed review of an embedded system like the Intoxiliyzer. And now, finally, after years of preparation and litigation, the evidence we’ve been demanding for years has been presented in open court, and we’ve reached the calm before the storm.      

We’ll be filing our final written arguments by the end of January. Given the volumes of testimony presented, it’s likely that Judge Abrams won’t issue a final order until April of 2011. It’s a waiting game now, with over 4,000 cases at stake, and we’re optimistic about the outcome.

The Defense Rests: Fight Over Intoxilyzer 5000 Enters Next Stage

Today, the members of the trial team for the Source Code Coalition finished presenting our evidence. At stake are over 4,000 DWI criminal and civil cases that rely almost entirely on test results produced by the Intoxilyzer 5000's “source code.”

Once we finished presenting our evidence, the State made a motion for a directed verdict - in effect, claiming that the defense failed to demonstrate that the Intoxilyzer 5000 is an error prone, faulty machine. Judge Abrams quickly ruled in our favor, and we have indeed made a prima facie case that the Intoxilyzer does not produce valid and reliable results in all cases.         

This ruling is a great victory for both the Coalition and for all Minnesota drivers, and underscores the fact that this machine is indeed flawed. We’ve said for years that there are problems with this machine, and have repeatedly asked for nothing more than an opportunity to prove our case. Now we’ve done our part, and proved our case- and the State has no choice but to try and rebut the evidence that we’ve presented, because otherwise the Intoxilyzer test results would be deemed inadmissible in court. The State is going to start attempting to meet that burden this afternoon.

We expect the State to spend most of next week trying to overcome the evidence we’ve presented. While the judge hasn’t issued a final ruling in this case (and likely won’t do so for some time) today’s ruling in our favor is a promising sign of things to come.

Fight Over Intoxilyzer 5000 Rages On

As members of the trial team and lead counsel for the consolidated challenge against the Intoxilyzer 5000, we’ve spent the last few months working overtime in preparation for the hearing that started on December 8, 2010. We’ve already presented three days of expert testimony, and aren’t even halfway done - but we’ve already presented substantial evidence that calls into question the “scientific results” that come out of this machine.

1)    The Intoxilyzer does not, to a reasonable degree of scientific certainty,   accurately report alcohol concentrations. For example, an Intoxilyzer  test result of .08 does not actually mean, and cannot be used to show, an alcohol concentration of .08.

2)    Numerous scientific safeguards that are supposed to ensure that Intoxilyzer results are valid and reliable simply don’t work. This includes some shocking revelations, including the fact that the Intoxilyzer just flat out cannot properly measure breath volume, despite claims to the contrary. The Intoxilyzer also reports the presence of alcohol when a totally “clean” air sample is provided. Basic safeguards, like the ability to detect interferents (non-alcohol substances that show up as alcohol), the ability to detect radio frequency interference, and various “self-tests” all fail to work as advertised.

3)    Essential components of the Intoxilyzer can be disabled without sending up any red flags. This includes heating elements and interferent detectors that are essential to providing consistent, reliable results.

4)    The “slope detector” is shaping up to be about as faulty as we expected. Many people are being charged with “test refusal” because source code errors are reporting otherwise valid samples as “deficient.”

Numerous other flaws have been exposed, all leading towards the final question: can we trust this machine to ensure that our roads remain safe, or is it little more than a “random number generator” that is sending innocent people to jail?

This week we expect to get even more information as we examine several experts from the Minnesota Bureau of Criminal Apprehension, as well as experts in breath testing from other States. Stay tuned!

Intoxilyzer 5000EN Source Code Hearing Scheduled to Start December 8, 2010.

After years of carefully crafted discovery requests, and a lengthy lawsuit in Federal Court, the source code to the Intoxilyzer 5000EN was finally released to the experts hired by the Source Code Coalition.

The Supreme Court ordered a state-wide consolidated hearing be held on the validity and reliability of the Intoxilyzer. That hearing is scheduled for December 8, 2010 before the Honorable Judge Abrams, district court judge for the First Judicial District.

As a member of the trial team and as lead counsel for this complex and controversial hearing, we’ve been working overtime to prepare all of our experts and exhibits for what is bound to be an eye-opening hearing. It is expected that Judge Abrams will issue a final decision on this matter in early 2011. It is also likely that his decision will be appealed by at least one of the parties to the consolidated case, creating considerable uncertainty in what the future status of the Intoxilyzer will be.

Minnesota DWI Enforcer Leaving

As we’ve reported, the Intoxilyzer 5000 breath test machine is being taken out of service in the next few months.  The breath test machine is responsible for taking hundreds of thousands of licenses and convicting almost as many of DWI. 

Joel Watne, 72, a lawyer with the Office of the Minnesota Attorney General, is also being phased out.  This week, Joel retired after 37 years as a lawyer.  While Joel may not be personally responsible for as many revocations and convictions, he has an impressive resume. 

Joel wrote and lobbied for many of Minnesota’s DWI laws. He has logged over 11,700 court appearances, handled over 300 appeals in Minnesota Supreme Court and Court of Appeals and some in federal court, including the 8th Circuit Court of Appeals and U.S. Supreme Court according to his Linked-In page.

Last week I appeared in a civil implied consent hearing in Dakota County.  Joel was my opponent. That battle was Joel’s last court appearance.   

As a criminal defense attorney, I won’t miss Joel.  He was always a pain the neck and always gave it his best.  Because Joel handled primarily civil implied consent cases, he was not subject to the higher ethical standards of criminal prosecutors– his duty was not to “do justice” but, like a defense attorney, to zealously pursue his case and do whatever it took to win.  He was passionate about keeping our roads safe and used every weapon in his arsenal to win – whether I thought it was fair or not.

He was passionate about his work and always brought his A-game.  He was a resource for not only the other lawyers in the Attorney General’s office, but for peace officers and prosecutors around the state.  As a husband and father of two young children, my family is safer because of his efforts.  As a tax payer, I recognize the state got its money’s worth out of Joel and thank him for his 37 years of service.

I wish Joel the best of luck.

Part 3- Adding Insult to Injury: Bypassing Minnesota's DWI Bail Statute.

In this final chapter in our three part series regarding bail, we’re going to debunk the common myth that Minnesota judges are required by law to set bail in DWI cases. We’ve already explained what you need to consider when you’re ordered to post bail, and analyzed why Minnesota’s bail statute is largely unconstitutional.

Unfortunately, few judges are willing to put their own necks on the line and completely ignore Minnesota’s DWI bail laws. However, many judges will listen to (and agree with) the argument that the bail statute itself does not even apply to many DWI defendants. I’ve used this argument many times in a situation where the court was going to charge my client $12,000 bail, and instead chose to release him or her without requiring any bail.

The DWI maximum bail statute defines when maximum bail is required. It supposedly requires maximum bail ($12,000) in all cases where a defendant is charged with second degree DWI (a DWI with two aggravating factors), whenever a test result reports an alcohol concentration at or above .20, or whenever someone under the age of 16 is in the vehicle. Other situations are also covered, such as when someone under the age of 19 is charged with third degree DWI, or when someone was caught driving with a canceled driver’s license.

The statute supposedly “requires” that anyone charged with a DWI under these situations be arrested immediately, and held until their first court appearance. This is the key - the requirement that these offenders be both arrested and held in custody. Put another way, if the officer does not have an offender held in custody until their first court appearance, the maximum bail statute, by its own terms, does not apply.

This situation comes into play all the time, especially in blood or urine test cases. These tests typically take at least a month to complete, so there is rarely a basis to hold someone in custody until their first court appearance. What happens instead is that the person is notified, a month or more after their arrest, that their test result came back above the legal limit. Then, overzealous prosecutors issue an arrest warrant, and expect people to post $12,000 bail long after they had already been released from custody!

It sounds absurd, but it happens, it happens regularly, and it happens in situations where defense attorneys should know better. Time and time again potential clients call our office, upset that they were forced to post thousands of dollars in bail after they had already been released from custody. It’s frustrating, because if we had been involved earlier, we likely could have prevented any bail from being ordered at all. All it takes is a careful argument to the judge, explaining why the maximum bail statute doesn’t cover situations where someone has already been released from custody!

If you’ve been arrested for DWI, and are awaiting the results of a blood or urine test, you need an attorney before, not after, the test results come back. Waiting will often be an expensive mistake - and a mistake that, with a little legal experience, can be completely avoided.

Continue Reading...

Minnesota Supreme Court Holding: Ongoing Constitutional Vitality of DWI Test Refusal Law Now in Question

The Chief Justice for the Supreme Court penned an incredibly articulate and devastating attack against Minnesota’s test refusal law today. In the case of State v. Larson, the Court held that:

"Larson also argues that his due process right to a fair trial was violated because the State was allowed to introduce evidence that he had refused to submit to voluntary . . . testing, and that the State used his refusal as evidence of his guilt. It is uncontested that Larson refused to allow the police to take a . . . sample . . . until the police produced a warrant. At trial, the district court ruled, over Larson’s objection, that Larson’s refusal to submit voluntarily to . . . testing could come before the jury. The court acknowledged that, while Larson “had that right to refuse to cooperate,” he did not see that “any constitutional rights of [Larson’s] are violated by that fact being told to the jury.” This ruling was erroneous. See Jones, 753 N.W.2d at 687 (“It is a violation of the defendant’s right to due process for a prosecutor to comment on a defendant’s failure to consent to a warrantless search.”)." (Emphasis added)

I’ve never read a more damning attack against Minnesota’s DWI test refusal law.

There is one problem: the above quote doesn’t refer to blood, urine, or breath samples for alcohol concentration - it refers to blood samples for DNA testing. Thus, the legal conclusion that our current test refusal law is unconstitutional can be craftily avoided by simply invoking the DWI exception to the Constitution.

We’ll be bringing the Larson case to the attention of every judge that is presiding over a test refusal case, and it will be very, very interesting to see how they can “distinguish” (legalese for “ignore) this case from the line of cases mysteriously holding that charging someone for test refusal is constitutional.