Written by attorney Kevin W. DeVore


Minnesota DUI Landscape Changing After U.S. Supreme Court Decision

Minneapolis DUI Lawyer Kevin DeVore says orders are pouring in from around the state dismissing DUIs. Judges from around the state are recognizing the impact of a recent U.S. Supreme Court decision and are throwing out DUI over .08 charges because the tests were taken in violation of Constitutional rights. Recently, Kevin DeVore wrote on the U.S. Supreme Court decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

In McNeely, the SCOTUS granted certiorari “to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement." McNeely at 1558. The State of Missouri argued that the dissipation of alcohol in the blood stream constitutes a per se exigency in blood tests. The Supreme Court disagreed, stating that exigency ought to remain a case by case determination: it is uncontroverted that “the reasonableness of a warrantless search under exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances." McNeely at 1560.

The McNeely decision has set off a flurry of DUI litigation in Minnesota. Courts have been weighing in on the critical questions:

Does McNeely only apply to forced blood draws?

Although the initial response from Minnesota district courts was that McNeely only applied to non-consensual blood draw cases, that seems to be changing. Most Judges have a hard time claiming that the Fourth Amendment only applies if the person refuses to submit to a blood test.

Is a breath test a “search" under the Fourth Amendment?

Yes, it is clear that per the Fourth Amendment a breath test is a search. State v. Netland, 762 N.W. 2d 202, 212 (Minn. 2009).

Should the level of “invasiveness" of the test be considered as a factor to determine whether the Fourth Amendment applies?

No. When a search is in question the touchstone is reasonableness, not invasiveness. Netland at 212. To determine reasonableness the courts “balance [an individual’s constitutional right to privacy] against the state’s need to intrude on that privacy." State v. Mellett, 642 N.W.2d 749, 784 (Minn. App. 2002) pet. for rev. denied (Minn. July 16, 2002).

Is the dissipation of alcohol content a single-factor exigency?

No. McNeely says that the natural dissipation of alcohol in the bloodstream is not per se exigency that suffices on its own to justify an exception to the warrant requirement." McNeely at 1558.

Does Minnesota’s Implied Consent Law provide an exception to the warrant requirement?

No, because per se the implied consent law does not create a voluntary waiver of a person’s constitutional rights. If a search is to be upheld as constitutional it must be given “freely and voluntarily." State v. George, 557 N.W.2d 575, 579 (Minn. 1997). The implied consent advisory given to driver’s suspected of drunk driving informs the driver that a refusal to submit to a test will result in criminal charges. A person’s consent cannot be “coerced, by explicit or implicit means, by implied consent or covert force." Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).

Is the criminalization of refusal to consent to a test constitutional?

Currently it is…but that may be changing. Technically, Minnesota does not criminalize the refusal to consent to a test, but rather the refusal to submit to one. State v. Wiseman, 816 N.W.2d 689, 696 (Minn. App. 2012). This is mere semantics, however. If the dissipation of blood is no longer a single-factor exigency, and no search warrant was obtained, and it is unconstitutional to coerce consent, then it should be illegal to charge someone with a crime for refusing to submit to an unconstitutional search. The Unconstitutional Conditions Doctrine, the notion that the government cannot condition a privilege on surrender of a constitutional right, should control in the discussion of whether criminalization of test refusal is constitutional.

Does the Good Faith Exception to the Exclusionary Rule apply in DUI cases?

No. The good faith exception provides that “the exclusionary rule does not apply when the police conduct a search in ‘objectively reasonable reliance’ on a warrant later held invalid." State v. Davis, 131 S. Ct. 2419, 2427 (2011). The Minnesota Supreme Court has declined to adopt or even address the good faith exception.

Minneapolis DUI Lawyer Kevin DeVore sees many changes on the horizon. “It is likely that DUI arrest procedures will change as a result of the McNeely decision. It is also possible that Minnesota will de-criminalize test refusal," says Kevin DeVore, a Minneapolis Criminal Defense Attorney. Kevin practices in Minneapolis, St. Paul and throughout Minnesota and Wisconsin. If you would like more information about this or any other criminal topic, please feel free to visit Kevin’s website at or contact him at 651-312-6519.

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