Written by attorney Max A. Keller

Is Warrantless DWI Testing Illegal in Minnesota under the McNeely case?

If you have a criminal DWI case and/or civil implied consent driver's license revocation cases pending, you may have heard of the recent U.S. Supreme Court decision in McNeely v. Missouri issued 4-17-13 (attached). In McNeely the U.S. Supreme Court held that Missouri could not take a non-consensual blood test from a driver in a standard DWI case (no accident) without either a warrant OR a showing of special circumstances like an emergency stemming from injured persons in a car accident (i.e. “exigent circumstances"). In McNeely, consent was not an issue since the driver refused to consent to the test. The U.S. Supreme Court specifically held that "Exigent Circumstances" do NOT exist just because alcohol exists in every DWI case. I have been arguing the same thing in many cases in Minnesota since at least 2008, as have many other expert Minnesota criminal defense attys. Until now, Minnesota Judges have refused to listen to us or agree with us. In fact the Minn. Supreme Court has dodged the issue, in some respects, because they refuse to grapple with the issue of coerced “consent" in “implied consent" cases. NOW our Minnesota State Courts will be forced to deal with the issue head on.

That is because this McNeely case means that the theoretical underpinnings of Minnesota’s criminal DWI and ** civil implied consent driver's license revocation laws** have been ripped out from under themselves. A house without a foundation will surely fall. Before the U.S. Supreme Court ruled, I had discussed this pending case with many clients. Now that the U.S. Supreme Court has ruled, our foundational DWI case law decisions by the MINNESOTA Supreme Court in Shriner v. State (Minn. S.Ct. 2008) (attached in links section) and Netland v. State (Minn. S.Ct. 2009) (attached) are essentially null and void. These decisions are void because the Minnesota Supreme Court held in each case that Alcohol DOES create a per se exigency in every CVO(Criminal Vehicular Operation) case (CVO=DWI w/accident and injuries to someone other than the defendant driver) (Shriner) and every standard DWI case (Netland). Thus, the Minnesota Supreme Court concluded that police do NOT need a Warrant OR your "consent" in order to get a sample of your blood, breath or urine in a DWI case AND that if you refuse such a test upon probable cause that you can be charged with the CRIME of test refusal.

NOW the U.S. Supreme Court has squarely rejected the rationale of Shriner and Netland that alcohol creates a per se (automatic) exigency or "exigent circumstances." This means police MAY be required to get a warrant in all DWI and CVO cases OR to show that they tried, but couldn’t do so, including that they at least tried, but were unable to contact a judge by phone to get a phone warrant.

This also means that anyone charged with DWI test refusalhas a good argument that the “crime" of DWI test refusal is Unconstitutional. That is because the police may get a warrant, or show special circumstances, but they can’t charge you with a crime for exercising your Fourth Amendment rights to refuse to consent to a search of your blood, breath or urine.

Quite honestly, it will take years for this issue to be sorted out in Minnesota, and we will continue to press the issue. And we will appeal where necessary and feasible, because many district court judges will surely rule against us on these issues, even though the plain truth is right in front of them just like the nose on their faces!

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