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Minnesota DWI Law Updates: Minnesota V. Brooks Oral Argument

INTRODUCTION

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. [1]

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. [2] In 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 [3] and 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 DWI charges.

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/

  1. 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 Brooks.

  1. 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 Gant [4] and McNeely [5] , 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.

  1. 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 Davis [6] and Leon [7] 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.

  1. 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."[8] 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."[9] 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.

  1. 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 Bumper [10] 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 McNeely decision.

  1. 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.

  1. TODD ZETTLER'S ARGUMENT
  2. 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 an intrusion.

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.

  1. 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 Henning [11] 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.

CONCLUSION

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.

[1] 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)

[2] Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013).

[3] 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).

[4] Arizona v. Gant, 556 U.S. 332 (2009).

[5] Missouri v. McNeely, 133 S. Ct. 1552, 1554 (2013).

[6] Davis v. U.S., 131 S.Ct. 2419 (2011).

[7] U.S. v. Leon, 468 U.S. 897 (1984).

[8] Missouri v. McNeely, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013)

[9] Missouri v. McNeely, 133 S. Ct. 1552, 1568, 185 L. Ed. 2d 696 (2013)

[10] Bumper v. North Carolina, 391 U.S. 543 (1968).

[11] State v. Henning, 666 N.W.2d 379 (Minn. 2003).

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