In earlier posts we have mentioned the case of
Minnesota v. Brooks which involves a man who was required to give a urine sample under Minnesota's
Implied Consent laws without a warrant.
This case is important because it is the first DWI case being considered
by the Minnesota Supreme Court since the announcement of the United States
Supreme Court's decision in
State of Missouri v. McNeely.
McNeely, the U.S. Supreme Court ruled that, "in drunk-driving investigations,
the natural dissipation of alcohol in the bloodstream does not constitute
an exigency in every case sufficient to justify conducting a blood test
without a warrant." Although the Supreme Court only specifically
cites to blood tests in
McNeely, breath and urine tests are often treated similarly
McNeely directly overrules current Minnesota law and will require change in Minnesota
when it comes to whether the police may force drivers to submit to blood,
breath and urine tests without a warrant.
This case is of great significance to those charged with DWIs in Minnesota.
For this reason, we at
Caplan & Tamburino are following the updates in
Minnesota v. Brooks with great care and concern for the well-being of our clients. If you or
someone you know has been charged with a DWI, call us at
Caplan & Tamburino at
612-444-5020 so that we can inform you of your constitutional rights and make certain
that those rights are vigorously defended.
Here is the most recent update on
Minnesota v. Brooks: On September 11, 2013, the Minnesota Supreme listened to the oral arguments
of three attorneys on this case.
Caplan & Tamburino sent a representative to the oral arguments in order to stay on top of
the changes in the law so that we may best serve our clients who are facing
Jeffrey Sheridan represented Mr. Brooks, Michael Richardson represented
Hennepin County, and Todd Zettler represented Scott County. What follows
are some of the highlights from the argument but the entire oral argument
can be viewed here: http://www.tpt.org/courts/
- SHERIDAN'S ARGUMENT IN FAVOR OF REQUIRING A WARRANT
PRIOR TO BLOOD, URINE & BREATH TESTING
The theme of Mr. Sheridan's argument was that the general rule is and
should be that a warrant must be issued prior to a lawful search. It is
only after that first law is recognized that possible exceptions may be
considered to that rule, none of which apply in
- Search Incident to Arrest
It seemed that the Supreme Court Justices agreed that under the search
incident to arrest exception, there exist only two possible reasons for
its application: (1) for officer safety, or (2) to preserve evidence.
They also seemed to agree that, in this case, officer safety is not applicable.
Mr. Sheridan argued that the second exception should not apply to allow
officers to take blood, breath or urine without a warrant in order to
preserve evidence. He argued that this is true because the individual
does not have the ability to destroy the evidence himself and because
the Supreme Court determined in
McNeely that the dissipation of someone's blood alcohol content does not create
such an exigent circumstance. Finally, citing the combination of
, Mr. Sheridan argued that the landscape had been changed as far as the
search incident to arrest is concerned – making evidence that is
only destroyed by the passage of time such that it cannot be considered
an exigent circumstance.
- Implied Consent Law
A number of questions were asked to all three attorneys regarding Minnesota's
Implied Consent Law which currently criminalizes a refusal to submit to
a breath, blood or urine test. One of the Justices presented this hypothetical
to Mr. Sheridan: If Minnesota law said that the only penalty for refusing
a test was a civil one and that refusal was not actually a crime, would
that be constitutional? He responded that, yes, such a change would likely
resolve the issue but that as it stands now, the implied consent law takes
away choice altogether and is unconstitutional. Mr. Sheridan further argued
that even without implied consent, plenty of tools exist for law enforcement
to fight DWIs and encourage people to submit to testing without government coercion.
III. Good Faith Exception
Next the Justices segued into asking questions about the good faith exception
and whether the Minnesota Supreme Court is bound to adopt the rules in
which would require that searches conducted in objectively reasonable
reliance on binding appellate precedent would not be subject to the exclusionary
rule. That is, that evidence taken without a warrant would still be allowed
in court because the police were acting in good faith and believed they
were acting in accordance with the law at the time.
Mr. Sheridan argued that the court could adopt
Davis and a good faith exception but that the history of the Minnesota Supreme
Court would suggest that that is not the direction the court should go.
Furthermore, he argued that the court is not bound to adopt the rule in
Davis because the US Supreme Court sets the minimum protections but Minnesota
may grant even greater protection and Minnesota policy makers have made
clear that the remedy for search and seizure violations must be the suppression
of the evidence.
Finally, Mr. Sheridan argued that in Minnesota, we believe that there should
be greater protections for the privacy of citizens and that that is the
basis for the suppression rule. Herewe are protected not only by the U.S.
Constitution but by the even stricter requirements of the Minnesota Constitution as well.
- MICHAEL RICHARDSON'S ARGUMENT
Mr. Richardson began his argument stating that, unlike what Mr. Sheridan
argued, there is not a categorical disapproval of anything in the
McNeelydecision other than requiring a warrant during routine traffic stops. One
Justice immediately interrupted him and quoted the following from
McNeely: "In those drunk-driving investigations where police officers can
reasonably obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth Amendment
mandates that they do so." The same Justice stated that that seemed
like a categorical disapproval to him.
Mr. Richardson disagreed arguing that it is better to have blood or urine
tests taken within the first two hours of an arrest. Also, because neither
time nor dissipation of blood alcohol content stop to wait for a warrant,
the risk of evidence being destroyed is too great and police must be allowed
to pursue testing without a warrant. The same Justice responded saying
that it seemed like Mr. Richardson would like to just change the word
"mandates" into "encourages" within the quote he had
just read from
McNeely and the Justice asked how Mr. Richardson could reconcile such an interpretation.
Richardson then cited to another portion of the
McNeely opinion which reads, "the fact that a particular drunk-driving stop
is 'routine' in the sense that it does not involve 'special
facts,' . . . does not mean a warrant is required." The Justice
still seemed to disagree responding that it seems to him that the only
way that an officer could avoid getting a warrant would be if he did not
have time to do so.
- Implied Consent Law
When another Justice brought up implied consent, Mr. Richardson argued
that there was actual consent in the
Brooks case. In
McNeely the defendant was coerced and held down in order to have his blood extracted but in
Brooks, the defendant allowed it and no coercion was used.
A Justice then asked if a case named
is dispositive on the consent issue. Mr. Richardson argued that it is
not because calling the issue consent is misleading. He argued that what
we are actually dealing with is the question of whether the defendant
submitted or refused to submit because consent has already been given
when the person decides to drive. Essentially, Mr. Richardson argued that
because Minnesota's statute does not authorize outright coercion,
it is outside of the
- Good Faith Exception
Richardson also argued that, yes, the court should adopt a good faith exception
and not suppress evidence because the officers were simply following the
understood state law to the best of their ability.
- TODD ZETTLER'S ARGUMENT
- Search Incident to Arrest
During Mr. Zettler's argument, another Justice brought up the issue
of search incident to arrest. Mr. Zettler argued that blood draws can
be distinguished from other types of testing as an intrusion into the
body. For that reason, he admitted, blood draws require a warrant while
urine and breath tests should not. The Justice disagreed with him stating
that the Supreme Court jurisprudence seems to put urine into the category
of an intrusion with blood even if breath is not. Mr. Zettler argued that
these searches are reasonable because of the decreased privacy interest
in one's own urine or breath. Then the Justice asked whether the court
has ever allowed a search incident to arrest which involved an intrusion
into the body and Mr. Zettler responded that he did not know of any such case.
Coming back to this issue later, another Justice asked if, with respect
to an arrest made for sexual assault, the state should be allowed to take
a buccal swab from an arrestee without a warrant. Mr. Zettler responded
that a buccal swab does constitute an intrusion so it is different than
a breath or urine test. The same Justice asked Mr. Zettler to please explain
how urine and breath tests are any different from buccal swabs but Mr.
Zettler simply responded that they are different because one is an intrusion
and the others are not. He never distinguished what defines the one as
Mr. Zettler also argued that time and the dissipation of blood alcohol
content are important factors to be considered in allowing an officer
to proceed to take a blood, urine and breath test without a warrant.
Finally, a Justice asked whether Mr. Zettler thinks an officer ever needs
a warrant to take a test when there is an arrest. He responded that, for
a blood test, police do need a warrant but for a breath or urine test,
his argument is that police should not ever need one. Mr. Zettler concluded
by explaining that there is a lot of caution and uncertainty about what
to do among police officers and that some jurisdictions have stopped using
the implied consent law altogether as they are awaiting guidance from
the Minnesota Supreme Court.
- SHERIDAN'S REBUTTAL
Mr. Sheridan opened his rebuttal arguing that this case does fall under
Article I Sec. 10 of the Minnesota Constitution which entitles Minnesotans
to even greater protections than those found within the Fourth Amendment.
When a Justice asked whether the implied consent law would be constitutional
if it simply stated that: If you drive, you agree that the state can take
your blood, breath or urine. Mr. Sheridan responded that, yes, that language
would be constitutional but because Minnesota's statute criminalizes
refusal, that is unconstitutional. He cited a case called
and explained that you cannot condition giving someone a driver's
license on that person giving up their constitutional rights.
Finally, Mr. Sheridan concluded stating that DWI cases are not special
and do not allow the state to set aside the rules that would apply to
any other criminal investigations. The Fourth Amendment was not adopted
as a convenience to law enforcement. Instead, its purpose is to place
a referee within the game of solving crime. The first rule, he argued,
is that the police must get a warrant prior to a search.
It is impossible to predict how the Justices will rule based upon their
questions or tone during the oral arguments. However, this case is of
great significance to those charged with DWIs in Minnesota. For this reason, we at
Caplan & Tamburino will continue to follow the updates in
Minnesota v. Brooks with great care and concern for the well-being of our clients.
If you or someone you know has been charged with a DWI, make certain that
you hire an attorney who is capable of raising all of the arguments necessary
to protect your constitutional rights and reach the best outcome for your
case. This specific type of attorney is in limited supply. Please call us at
Caplan & Tamburino at
612-444-5020 so that we can inform you of your constitutional rights and make sure that
those rights are appropriately defended.
State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied
(July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)
Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013).
Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616 (1989); see also
Schmerber v. California, 384 U.S. 757, 767-768 (1966).
 Arizona v. Gant, 556 U.S. 332 (2009).
 Missouri v. McNeely, 133 S. Ct. 1552, 1554 (2013).
 Davis v. U.S., 131 S.Ct. 2419 (2011).
 U.S. v. Leon, 468 U.S. 897 (1984).
 Missouri v. McNeely, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013)
 Missouri v. McNeely, 133 S. Ct. 1552, 1568, 185 L. Ed. 2d 696 (2013)
 Bumper v. North Carolina, 391 U.S. 543 (1968).
 State v. Henning, 666 N.W.2d 379 (Minn. 2003).