Minnesota DWI Defense Blog

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

Chuck Ramsay — Mon, 20 May 2013 11:27:19 -0600

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.

NTSB Recommends Lowering Legal Alcohol Limit to .05

Dan Koewler — Tue, 14 May 2013 11:40:30 -0600

Today, as reported in the Star Tribune, the National Traffic Safety Board (NTSB) made the entirely expected announcement that they are recommending the legal limit be reduced from .08 (where it is now) to .05.

This is in keeping with recent trends, which has seen states lowering the legal limit from .10, to .08, and now likely .05. While the intended goal of such a law would be to reduce drunk drivers by making many more citizens criminally liable for driving with alcohol in their system, a new limit of .05 poses many challenges to both your average driver and our courts.

As one example, with a .05 limit there will need to be a great deal of additional scrutiny focused on the various test methods used against drivers - blood tests, breath tests, and urine tests. These tests will have to be a great deal more accurate and precise to distinguish between drivers who are .049 and .05. Additionally, tests that can dramatically over-estimate alcohol concentration (like urine tests) would have even less of a place as a law enforcement tool than they do now.

But the biggest question may be "why .05?" Currently, it is still legal to drink and drive in Minnesota; what is criminal is being impaired, or being over .08. With a .05 limit, legislatures will still be telling drivers "it is legal to drink and drive" but the threshold for criminality will be so low so as to make it virtually impossible for someone to know if they really are over the legal limit. At that point, it likely makes the most sense to simply change the law to "not a drop" and thereby put everyone on notice that any drinking coupled with any driving will be a criminal act. This is already the case for drivers under the age of 21 - any presence of alcohol while driving results in criminal charges.

That type of law - not a drop - will undoubtedly come down the pipe in the future . . . but not anytime soon. In the meantime, the legal limit will continue to drop in small increments, tripping up thousands of drivers annually while our legislatures keep drawing finer and finer lines between the realm of "legally sober" and "criminally drunk."

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

Chuck Ramsay — Tue, 14 May 2013 09:30:13 -0600

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.

The Impact of McNeely: Fundamental Changes For Minnesota DWI Law

Dan Koewler — Tue, 07 May 2013 17:05:19 -0600

Nobody can deny the tremendous impact the U.S. Supreme Court's decision in Missouri v. McNeely will have on how we handle Minnesota DWIs in the future. The McNeely decision breathed some much needed life into what many perceived as an ailing and weary Fourth Amendment - an Amendment that, together with the First Amendment, forms the absolute bedrock of a free society.

We've been preparing for years in the hopes that our Courts - as stewards of the Constitution - would interpret the Fourth Amendment in a way that makes sure that it actually does apply to DWI arrests. And now they have.

But change is difficult, even when it is staring you in the face. As every state in the union comes to terms with the new legal landscape post-McNeely, Minnesota is facing a particularly difficult upheaval, much more than most other states. This is due to two unique aspects of Minnesota law - the criminalization of test refusal (coerced consent) and the codification of suppression (I'll explain that in a minute).

First, consent: The vast majority of states didn't take the extreme step of outright criminalizing test refusal; Minnesota is in the minority of jurisdictions that makes it a crime to withhold your consent to a warrantless search. So, many states can safely wade through their pending and future DWI cases relying on the fact that most people will say "yes" when asked to submit to a blood, breath or urine test, and their consent eliminates the need to obtain a warrant.

But that's not Minnesota - in Minnesota, "yes" comes at the barrel of a gun, and can hardly be considered to be true consent. When saying "no" is a crime, it will always be nearly impossible for the government to persuasively argue that anyone is actually consenting to submit to a test.

Second, suppression: the courts have had a long-standing rule that evidence obtained in violation of the Constitution is inadmissible in court, referred to as the "exclusionary rule." There are a lot of policy reasons behind this rule, but it is sufficient to point out that if this illegally obtained evidence wasn't suppressed, we could just as well delete the entire Fourth Amendment and call it the "Bill of Guidelines" instead of the Bill of Rights.

Now, the federal courts have recently developed a new doctrine dealing with suppression, calling it the "good faith" exception to the warrant requirement. Again, it suffices to say that if an officer conducts a search that he believes to be constitutional, but that law is later overruled, this "good faith" exception basically means that even though the search was illegal, the evidence is still admissible in court.

Again, in many other states this means that all of the DWI cases put on hold pending McNeely didn't gain much from that decision. Their searches may have been illegal (unless they were consented to), but the evidence comes before the jury anyway, so it's a pretty hollow victory.

But Minnesota is different - where our Legislature made the questionable decision of criminalizing the act of not consenting to a warrantless search, they also made the inspired decision to pass a specific law that mandates the suppression of evidence for any illegal search. Minnesota Statute 626.21 says in no uncertain terms that illegal searches = suppressed evidence. Our own Minnesota Supreme Court has also repeatedly rejected the need for such a rule.

So Minnesota is in a pickle (to be fair, it's a pickle that could have easily been avoided): prosecutors can't say with a straight face that everyone has been consenting to their blood, breath and urine tests. The best they can say is that drivers keep saying "yes" after being properly threatened. And then, prosecutors have no "good faith" exception to fall back on, meaning if they want to maintain their DWI cases against our clients, they are going to have to prove that there simply wasn't enough time to get a warrant before our client's slipped below the legal limit. Considering the fact that we're still not properly training our officers on the simple task of obtaining a telephonic warrant, I don't see that argument being very successful.

There will be some significant growing pains in Minnesota as a result of the McNeely decision. There is a good chance many DWIs will be thrown out of court. But in the end, everyone will have a renewed respect for the Fourth Amendment; courts, prosecutors, defense attorneys, the legislature, and the general public. And that, too, makes us all safer.

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

Chuck Ramsay — Mon, 22 Apr 2013 11:31:27 -0600

BREAKING NEWS:

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

Dan Koewler — Fri, 19 Apr 2013 09:42:48 -0600

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

Dan Koewler — Thu, 18 Apr 2013 08:25:16 -0600

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:

Four Years Later, Vindication: SCOTUS Upholds Missouri v. McNeely, overturns State v. Netland

Dan Koewler — Wed, 17 Apr 2013 09:46:57 -0600

The manner in which the police enforce Minnesota's DWI laws was fundamentally changed this morning, when the Supreme Court of the United States (SCOTUS) issued a landmark decision in the case of Missouri v. McNeely (link leads to a copy of the opinion).

It's a complicated decision broken down into four parts (some parts commanding a majority, some not), a concurrence, and a dissent. It will take time to fully digest exactly how many ways this decision will affect the future of Minnesota DWI law enforcement, but one thing is very clear.

The Supreme Court just overturned the decision in State v. Netland, a case we brought before the Minnesota Supreme Court in 2009. As a direct result of the McNeely decision, there is no longer a "single factor exigency" doctrine to speak of, meaning that law enforcement around the state (and the nation) will have to at least consider obtaining a search warrant prior to administering a chemical test for intoxication.

This will have a major impact on law enforcement practices going forward, but will have a much bigger effect on the many cases currently in the court system. We've been positioning our client's cases for months in anticipation of this decision, and plan to take full advantage of this fundamental change in the case law to benefit our clients.

The importance of this decision cannot be understated. Not only does the McNeely decision eliminate the judicially-constructed doctrine of "single factor exigency" once and for all (and add renewed strength to the privacy protections that are the cornerstone of the Fourth Amendment) but it opens a whole new can of worms in Minnesota. For starters, there is a good chance that Minnesota's test refusal law is no longer constitutional, and will have to be discarded.

We'll bring you more information once we've had a chance to fully digest the impact of this decision, but in the meantime, you may want to read some of our previous blogs leading up to today's opinion:

Agents of the Constitution: The "Show Me" State Protects the Fourth Amendment

U.S. Supreme Court to Decide if DWI Laws Are Unconstitutional

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

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

And again, if you'd like to read the actual language of the decision in Missouri v. McNeely, you can find it here.

Ramsay Law Firm to Present CLE About DWI Testing

Dan Koewler — Wed, 27 Mar 2013 08:35:03 -0600

If you're free over the lunch hour, it might be a good idea to tune in to our live Webcast from 12:00 - 1:30. It's part of the Criminal Law Series provided by the good folks at Minnesota CLE, where me and Chuck will be covering the portion of Minnesota's DWI Deskbook dealing with the heart and soul of all DWI cases - Chemical Testing.

You'll not only learn a lot about the science behind DWI tests (and ways to counter those same tests) but Minnesota CLE has applied to the Minnesota State Board of CLE for 1.5 standard CLE credits and 1.5 criminal law specialist credits.

Following along with the entire DWI Deskbook Webcast Series (including the portion covered today by me and Chuck) is good for both new attorneys and seasoned ones, and as the science behind DWI testing is always evolving, our presentation today is a great way to make sure you're on top of all the latest developments. We hope to have you join us!

Dayton to Appoint David Lillehaug to Minnesota Supreme Court

Dan Koewler — Tue, 26 Mar 2013 11:48:22 -0600

Minnesota Lawyer is reporting that Governor Dayton has selected David Lillehaug as the newest member of the Minnesota Supreme Court. Soon-to-be Justice Lillehaug will replace Justice Paul H. Anderson, slated to retire in May.

This appointment comes on the heels of Governor Dayton's recent appointment of Justice Wilhelmina M. Wright last September, and marks his second appointment to the state's highest court.

We'd simply like to take this moment to join the rest of the legal community in congratulating Mr. Lillehaug while looking forward to arguing before him in the future.

Police Union Blocks Creation of Independent, Civilian Post for Troubled St. Paul Crime Lab

Chuck Ramsay — Mon, 18 Mar 2013 15:21:31 -0600

Last year the St. Paul Crime Lab was shut down after Minnesota defense attorneys Christine Funk and Lori Traub exposed the lab’s shoddy practices and procedures when dealing with crucial evidence. At the time, the lab was supervised by a poorly trained St. Paul Police Sergeant.

Following the lab’s closing, the city hired two independent consultants to review the lab’s work and make recommendations to improve the lab. The consultants found errors in almost every area of the lab's work. (Here are their crime lab reports).

Following the recommendations of two independent consultants, the city created a new position of “Forensic Lab Manager” to be filled by an independent, properly-trained scientist. The use of an independent scientist is the crucial point – hiring such a person recognizes the importance of crime labs’ independence from police and prosecution, something the scientific community has stressed for years (for example, see recommendation #4 of the National Academy of Sciences Report, Strengthening Forensic Science in the United States: A Path Forward (2009).

Professor Harris, author of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012), explains the rationale behind the recommendation for independent laboratories in The Truth About Forensic Science:

The idea couldn’t be clearer: in order that we have better, science-based forensic methods and results, and especially to maximize independence from law enforcement, all forensic labs had to be removed from all law enforcement agencies or prosecutors’ offices. As the report explained, “The best science is conducted in a scientific setting as opposed to a law enforcement setting. Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”

Although the city was eventually forced to acknowledge the problems with their lab, and seem to be making a good faith effort to bring the lab up to professional standards, the police union has thrown up a barrier to the new position. And surprisingly, the union makes no secret about its reason for the obstruction: the union objects purely because they want day-to-day control of the lab and additional jobs for cops. That’s how you get quotes like the following mind-bender: “Sworn officers should not be reporting to civilians.”

We’ve seen the ramifications of cop-run labs – it took the painstaking work of numerous defense attorneys countless hours to expose the St. Paul Crime lab . . . which is just one example out of many. It is time for the police to put the best interests of the public first. As Professor Harris writes,

Personally, I believe in unions. I feel that they have been a key factor in generating middle class prosperity in the U.S. since the early 20th century. But this seems like simple obstruction of a change needed to benefit the public, just for the gain of a few.

With the union refusing to allow officers to report to civilians, it is clear the police will continue to engage in a turf war, regardless of how it affects public safety.

As one defense attorney who helped expose the shoddy lab work said, “I think the sergeant did answer to the civilians -- last July.”

We agree.

Minnesota's DWI Test Refusal Law: Crafting New Defenses

Dan Koewler — Wed, 06 Mar 2013 16:01:07 -0600

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.

Cops Stabbing Citizens with Needles for Blood Tests: US Supreme Court Says "Unconstitutional" (Part 3)

Chuck Ramsay — Tue, 05 Mar 2013 11:05:35 -0600

In part 1 of our series, “Cops Stabbing Citizens with Needles for Blood Tests,” we told you the true story of a citizen who slid off the road during a winter storm. The police arrived on scene, but instead of “serving and protecting” they just ended up repeatedly sticking him with a needle at the local police station in a failed attempt to draw his blood and “prove” he was impaired.

In part 2, we pointed out the scariest part of the whole story: that under the current state of Minnesota law, the officers’ conduct was entirely legal.

Indeed, the Minnesota Supreme Court has held that because alcohol is a “single factor exigency,” no search warrant is needed prior to compelling a blood draw, and that if a driver fails to cooperate with providing a sample of bodily fluids upon demand, that person can be charged with the (often more serious) crime of test refusal.

We previously predicted this nightmare in an earlier blog, but we don’t deserve all of the credit for doing so. You see, the situation we were warning you about was already addressed by the US Supreme Court . . . back in 1966, in the case of Schmerber v. California.

If that case name sounds familiar, it should: it was the same case cited by Minnesota’s Traffic Safety Resource Prosecutor in our previous blog, supposedly in support of allowing police to use our citizens as personal pin cushions. We’re not so sure that he actually read the whole decision, though . . . because while the Schmerber Court technically said it would allow compelled blood draws, it then went to great lengths to explain how the Constitution simply would not tolerate extraction of blood “under other conditions.” What other conditions, you may ask? We’ll let the Supreme Court itself explain:

Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Now, reading that, it seems pretty clear that the Supreme Court took a dim view of blood draws performed by folks who are not, strictly speaking, “medical personnel” and had a problem with the thought of that blood draw happening down at the local police station. In Minnesota, we’ve just run the table, because both of those situations happened to our client – and incidents like the one we’ve described to you are only going to increase.

Or will they? Now, after nearly 50 years, this issue is again before the US Supreme Court in the case of Missouri v. McNeely. There is a good chance that the SCOTUS will step in and slap some sense into a system that has started to go overboard when it comes to those who are even alleged to have driven while impaired. In the wake of the McNeely decision, many states (who already view DWIs as searches that require warrants or some form of judicial oversight) will simply carry on as always; in Minnesota, it will be up to defense attorneys to make sure that police and prosecutors take a step back and begin to respect the constitutional rights of all drivers, regardless of what crime they are alleged to have committed.

Needless to say, the McNeely decision will be interesting, but however many answers it provides it will more than likely raise even more questions. Will McNeely be applied retroactively? Will it apply to all types of DWI tests (blood, breath and at least in Minnesota, urine)? We’ve got some ideas (of course) but only time will truly tell. In the meantime, we’ll continue to do what we do best: fight tooth and nail for the rights of our clients.

Part 1: Cops Stabbing Citizens with Needles for Blood Tests: A True Story

Part 2: Cops Stabbing Citizens with Needles for Blood Tests: Legal Under Minnesota Laws

Cops Stabbing Citizens with Needles for Blood Tests: Legal Under Minnesota Law (Part 2)

Chuck Ramsay — Wed, 27 Feb 2013 14:59:02 -0600

Many believe we need to tighten our impaired driving laws for both drunk driving and people who abuse prescription drugs and narcotics. But have we gone too far?

Yesterday we told you about a situation where our client, who slid off the road during a winter storm, ended up getting repeatedly stuck with a needle by several cops at a police station, all in a failed attempt to draw his blood and “prove” that he was impaired. As we said, the scary part is that it is all legal.

Historically, Minnesota law permitted only select health care professionals (specifically, “a physician, medical technician, emergency medical technician-paramedic, registered nurse, medical technologist, medical laboratory technician, phlebotomist, laboratory assistant”) to withdraw blood for DWI purposes. And this portion of the DWI law made sense. These professionals worked in labs and hospitals, making it likely that any blood draw would be performed by people who were both highly qualified, and worked in a sterile environment.

But then, on July 1, 2010, for no particularly good reason, the Legislature changed the Implied Consent Law, and permitted nearly anyone to draw blood – including the cops themselves. The only requirement is that a “qualified person” draw the blood. Although the law defines “qualified person” as “medical personnel trained in a licensed hospital or educational institution to withdraw blood,” the statute omits minimum training requirements, standards, or qualifications of the instructors who provide the training; and says nothing about where or under what conditions the blood may be taken. Meanwhile, and unsurprisingly, cops, prosecutors and even judges seem willing to overlook the “medical personnel” requirement in the already watered-down statute. Worse yet, the Legislature passed some additional language ensuring that the, “person drawing blood at the request of a peace officer ... is in no manner liable in any civil or criminal action except for negligence in drawing the blood.”

When this bill was signed into law in early 2010, we were alarmed and predicted this type of police behavior. Later that year we sadly reported that police had already begun to take advantage of the law:

Minnesota peace officers are now being given a 40 hour course that will supposedly “qualify” them to perform blood draws. That’s 8 hours of online training, and 32 hours of “lab exercises” before they can begin sticking needles into Minnesota drivers. Forty hours of training, versus obtaining a certification that can take years . . .

Even more alarming is that police are “excited” about their new found power to go vein hunting with needles back at the station. Minnesota State Patrol Sergeant Don Marose, expressed his exhilaration with the new law, while discussing how circumventing hospitals’ pesky safeguards would save them time and money:

This is an exciting new program for Minnesota law enforcement and should prove beneficial to reducing incidents of DWI. It is also an efficient use of resources that both reduces the cost of collecting evidence and reduces the time required to obtain a blood sample, thereby providing the blood test closer to the time of driving. With officers receiving the same training as medical personnel who draw blood, it will be done in a safe manner.

So, without any judicial oversight, an officer on the scene of a driver that is merely suspected of being impaired (and merely having bloodshot, watery eyes is enough to meet that threshold) can be treated like a human pin cushion by an officer with a needle, at the station or even by the roadside. Sound like a situation out of 1984 or Darkness at Noon? Would our courts stand for such a situation?

Sadly, the answer right now is “yes.” Bill Lemons, Minnesota’s Traffic Safety Resource Prosecutor, stated it best when he said:

Schmerber and subsequent decisions have firmly established that the offender does not have a right to refuse chemical testing and that non-consensual testing does not violate the Constitution. In recent years, the Minnesota Supreme Court has drawn a bright line rule that the natural dissipation of alcohol creates a “single factor exigent circumstance” and a test can be obtained without consent and without a search warrant. State vs. Shriner, 751 N.W.2d 538 (Minn. 2008); State vs. Netland, 762 N.W.2d 202 (Minn. 2009).

-- Bill Lemons, Minnesota’s Traffic Safety Resource Prosecutor.

That’s right. Citizens are required to submit to bumbling needle stabbing under penalty of law. If they refuse, they can be charged with a crime more severe than taking and failing the test. They face a minimum mandatory bail of $12,000, a year in jail, $3,000 fine and a license revocation up to 12 times longer than for a standard first-time DWI.

Luckily, Minnesota courts are not always the last word on legal protections and legal rights – there is always the United States Supreme Court. Be sure to check out our next blog about how the McNeely decision could trump Minnesota’s procedures, laws, and appellate court decisions on this frightening issue.

Part 1: Cops Stabbing Citizens with Needles for Blood Tests: A True Story

Part 2: Cops Stabbing Citizens with Needles for Blood Tests: Legal Under Minnesota Laws

Part 3: Cops Stabbing Citizens with Needles for Blood Tests: US Supreme Court Says “Unconstitutional”

Cops Stabbing Citizens for DWI Blood Tests: A True Story (Part 1)

Chuck Ramsay — Tue, 26 Feb 2013 11:37:04 -0600

Imagine, if you will: A typical February snowstorm. A driver loses control of his vehicle, slides off the roadway and hits a fence. A police officer arrives and, out of an overabundance of caution, administers field sobriety tests to ensure the driver is not impaired. The officer believes the driver failed the physical tests and has the driver blow into a roadside breath test device. Although the driver has no alcohol in his breath, and therefore passes the breath test, the officer arrests the driver for impaired driving.

At the police station, the officer tells the driver that “Minnesota law requires” him to submit to another test, and that “refusal to submit is a crime.” This officer then offers a blood test. The driver, who realizes he has no real choice under the law, submits.

Now imagine this: The police don’t take the driver to a clinical, sterile hospital for this blood test. They don’t call a doctor, nurse or paramedic to the station to draw the blood. No, in this story the police stay at the filthy police station, roll up the driver’s sleeve, and just starting sticking needles in the driver’s arm in an attempt to draw the blood.

The cop, needle in hand, is completely unsuccessful with the right arm. Undeterred, this cop then goes to work on the left . . .again, to no avail. While that officer gives up after two arms worth of stabbing, the ordeal isn’t over for this driver: instead, another cop eagerly jumps in and takes his turn using the driver as a human pin cushion. Only after both cops repeatedly stab the driver in both arms, time after time, do they finally give up . . . and ask for a urine test instead.

The scary part is that this is all legal under laws of Minnesota.

Many believe we need to tighten our impaired driving laws for both drunk driving and people who abuse prescription drugs and narcotics. But have our laws gone too far? Despite the legality of the officers’ human-pin-cushion-torture technique, are Minnesota’s laws constitutional?

Part 1: Cops Stabbing Citizens with Needles for Blood Tests: A True Story

Part 2: Cops Stabbing Citizens with Needles for Blood Tests: Legal Under Minnesota Laws

Part 3: Cops Stabbing Citizens with Needles for Blood Tests: US Supreme Court Says “Unconstitutional”

Problems Escalate As a Result of Investigation Into St. Paul Crime Lab.

Dan Koewler — Mon, 18 Feb 2013 12:35:45 -0600

As our own Charles Ramsay discussed previously on Channel 5 Eyewitness News, the St. Paul Crime Lab is facing serious scrutiny after two aggressive members of the public defender's office dug deeply into the daily policies and procedures of the lab and discovered serious flaws.

As was recently reported by Minnesota Public Radio, things keep getting worse for the crime lab; further review by independent consultants, "found major errors in almost every area of the lab's work."

Everyone will agree that the findings of these independent consultants are unacceptable, and that changes need to be made. The big question is, "what changes will make the most difference?"

While there is no easy answer to such a question, we'll offer one anyway: make all our State's forensic laboratories completely independent from law enforcement, as soon as possible. It's the course that was recommended by none other than the National Academy of Science in their 2009 report, and would go a long way towards eliminating the myth that government-run laboratory scientists are "neutral" and provide an important check against the negligent mishandling of evidence.

It's hard to predict when the St. Paul Crime Lab will be back up and running at full capacity, but hopefully when that day comes the lab is running as a truly independent entity that's more interested in the truth than in cutting corners and claiming convictions.

The Future of Minnesota's DWI Law: Admitting that the Supreme Court Could Be Ready to "Change the Legal Landscape" for DWIs

Dan Koewler — Thu, 14 Feb 2013 14:13:38 -0600

Since the beginning of February, we've been spending some time blogging about the Missouri v. McNeely case and how we expect it will impact both pending DWI cases and future DWI cases.

But that's just our opinion, our analysis. While there are some pour souls who simply refuse to believe that the McNeely decision could possibly impact Minnesota law, we understand how important this case could be. But our opinions aren't the ones that matter: what about opinions from those who will actually weigh the impact of this case - namely, judges?

We recently obtained this order from a district court judge that demonstrates just how smart our judiciary really is. This judge isn't throwing out our client's case (yet); this isn't a ruling on the merits of the action. But it is a very well-worded, well-thought out, order that recognizes the obvious: unless you are burying your head in the sand, there is no denying that McNeely has the potential to revolutionize the practice of DWI law . . . and good defense attorneys will make sure that they're protecting all of their current client's rights before the decision is released.

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

Dan Koewler — Tue, 12 Feb 2013 09:38:08 -0600

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

Dan Koewler — Sun, 03 Feb 2013 11:01:24 -0600

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?

Dan Koewler — Sun, 03 Feb 2013 10:56:59 -0600

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.