On April 17, 2013, the U.S. Supreme Court issued a landmark decision of Missouri v. McNeely. This decision has the opportunity to have a direct impact on Minnesota DWI law in years to come. While the extent of the impact is not yet known, we will be arguing that that this decision could be the death knell for Minnesota’s harsh Test Refusal criminal statute. We also believe that this decision will change the way police officers conduct testing procedures during DWI arrests, although the early response from prosecutors and law enforcement is that the McNeely decision only applies to blood tests taken without the driver’s consent.
Why does the McNeely decision have such a profound impact on Minnesota specifically? It is helpful to review a little bit of recent history to understand why. The broad issue addressed by the McNeely decision is whether an officer is conducting a “search" protected by the Fourth Amendment of the U.S. Constitution, and if so, does the officer need a warrant to conduct that search? Defense attorneys waged this battle for years until the Minnesota Supreme Court issued the decision in State v. Shriner in 2008. The Shriner case involved an officer’s blood draw from an individual without her consent after she had been in an accident with injuries and was suspected of being impaired. The driver argued that the blood draw was an illegal search performed without a warrant and without her consent. The Minnesota Supreme Court held that the natural dissipation of alcohol in the driver’s bloodstream created a “single factor exigency" that justified the search being conducted without a warrant.
The Court was careful to limit its holding only to situations involving accidents with injuries:
“Consequently, we conclude that when officers have probable cause to believe a defendant has committed the offense of criminal vehicular homicide or operation under Minn.Stat. § 609.21, it is important that the defendant’s blood be tested within 2 hours of the accident causing injury to or the death of another. With every passing minute, the most probative evidence of this crime is subjected to destruction by the body’s natural processes. The rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular operation."
After that decision was released, defense attorneys continued to argue that warrants were needed in more “routine" DWI investigations that did not involve injuries. Prosecutors and law enforcement disagreed and sought to extend the analysis of the Shriner decision to all DWI investigations. Eventually, the Minnesota Supreme Court sided with the prosecutors in the decision of State v. Netland in 2009.
The Netland case was a criminal Test Refusal case where the driver challenged the constitutionality of the Test Refusal criminal statute. The basic argument was that it was unfair and unconstitutional for the State to threaten a driver with criminal sanctions for refusing to submit to a search of the driver’s alcohol concentration, because an individual has the right under the Fourth Amendment to refuse to consent to a search and force the officer to get a warrant. The only way the State could avoid having the Test Refusal criminal statute being found unconstitutional was if the State could convince the Minnesota Supreme Court that a warrant is not needed in a routine DWI investigation. They argued that the limited “single factor exigency" warrant exception from the Shriner decision should be extended to ALL DWI investigations, not just DWI’s involving injuries, and the Court agreed.
Defense attorneys strongly disagreed with the Shriner and Netland decisions, but those cases were the law of the land in Minnesota. Then the case of Missouri v. McNeely tackled the issue of whether the natural dissipation of alcohol in the bloodstream, by itself, should be a “single factor exigency" that justified bypassing the search warrant requirement in all DWI cases. The Missouri Supreme Court decided that this single factor should not be enough by itself to absolve officers from getting a warrant. That decision also noted the split of authority on this issue in a few different jurisdictions across the country, including the Shriner and Netland cases in Minnesota. The prosecutors asked the U.S. Supreme Court to review the issue, and it agreed to do so.
On April 17, 2013, the McNeely decision was released and it held that the natural dissipation of alcohol in the bloodstream is not automatically enough to bypass the search warrant requirement in every DWI situation. Rather, the State needs to prove that the totality of the circumstances of an individual case created enough of an exigency to justify conducting the search without a warrant. This was the result that DWI defense attorneys had been arguing for in Minnesota before the Shriner and Netland decisions came out! The McNeely decision overturns the holdings in Shriner and Netland, leaving a void to refill with more litigation from both sides. While the McNeely case involved a blood test conducted without a warrant and without consent, the principle has now been made clear that the natural dissipation of alcohol in the body is not enough by itself to justify a warrantless search for alcohol concentration after a DWI arrest is made. It is also clear that the search warrant analysis always applies in any DWI investigation, and the State must prove that an exception to the warrant requirement was present if an officer conducts a search without a warrant.
Prosecutors are scrambling to limit the holding of McNeely to only nonconsensual blood test cases, which are rare in Minnesota. Officers have been advised to continue with business as usual, a risky gamble that could lead to even more litigation moving forward while the two sides hash out the extent and scope of the McNeely decision in Minnesota. Remember in the Netland case when prosecutors asked the Minnesota Supreme Court to extend the limited Shriner holding to ALL DWI cases? Now they are arguing for the exact opposite, that the McNeely case should be strictly limited to nonconsensual blood test only, even though the McNeely case has no language expressly limiting it like the Shriner decision had. It is important to note that the U.S. Supreme Court has specifically stated in a previous case that blood, breath and urine tests are all protected searches under the Fourth Amendment because each type of test involves intrusion into the body or invasion of personal privacy. The McNeely case only mentions the intrusion of a blood draw because the facts of McNeely only involved a blood draw. There is no language expressly limiting the McNeely holding to nonconsensual blood tests only.
Prosecutors also argue that most alcohol content searches are only conducted after the driver consents to the search, which is another exception to the warrant requirement. This is where things get really interesting in Minnesota specifically. As mentioned earlier, Minnesota is one of only a handful of States with a criminal sanction for refusing to submit to an alcohol concentration test. Minnesota law requires officers to inform drivers of this criminal penalty just before asking the person to submit to the test. Given Minnesota’s unique criminal sanction, defense attorneys have argued that any “consent" given after being threatened with a crime if consent is withheld should not be considered valid voluntary consent for the officer to conduct the search. It is easy to see why this “consent" is not freely given when you consider the same legal framework applied to a search of a person’s home. If an officer came to your front door and informed you that refusal to allow a search is a crime, then asked for your consent to search, there is no way that anyone would consider that “consent" to be voluntarily given.
Back when the Shriner and Netland decisions were pending, prosecutors had already tried to use the consent angle to convince the courts that a search warrant was not needed in DWI cases. Rather than using consent to justify these warrantless searches, the Minnesota Supreme Court purposely left the consent argument for another day and used the “single factor exigency" angle instead to justify the warrantless searches. Now that the McNeely case has nullified the single factor exigency standard, Minnesota goes back to square one. Prosecutors are returning to their old arguments, as are defense attorneys, regarding the quality of the consent given prior to conducting these warrantless searches. How the appellate courts will interpret this issue remains to be seen.
Another note should be mentioned here about Minnesota’s Test Refusal crime. Now that the McNeely decision has made it clear that the search warrant analysis of the Fourth Amendment applies to all DWI arrests, shouldn’t an individual have the right to refuse to submit to a search and thereby force the officer to obtain a search warrant? Under current Minnesota law, an individual who refuses to submit to the search is charged with the crime of Test Refusal and DWI, and the officer makes no attempt to get a warrant at all. The refusal to submit to the search is the final step in the process and the search is simply never conducted because the officer can fall back on the (usually) more serious criminal charge of Test Refusal instead of respecting the individual’s exercise of the Fourth Amendment right to be free from warrantless searches. Will the criminal Test Refusal statute continue to be found constitutional in the face of the McNeely decision? The road ahead will be interesting, and hopefully the rights of the individual will be strengthened when the dust settles in Minnesota this time.