You’ve been charged with a DWI. You may have ultimately taken a breath test, urine test, or blood test that resulted in an alcohol concentration of over .08, perhaps much higher. It is absolutely essential that you are aware of the United States Supreme Court ruling in Missouri v. McNeely, which can be found by here clicking here. This is a sea change in DWI law. When selecting at attorney, you need to make sure not only that they are aware of this case, but that they understand its relationship with Minnesota law and that your attorney is one who is heavily invested and engaged in fighting DWIs pursuant to McNeely. Don’t let a lawyer tell you that “McNeely only applies to blood tests” or that you “consented” to the test or any such thing. The U.S. Supreme Court just vacated the judgments in two Minnesota DWI cases where a urine test was used, and in Minnesota law, a breath test is even more coerced because you don’t have a right to an alternative test. It is irresponsible for your attorney not to apply genuine legal issues and good faith legal challenges to your case. The County Attorneys have tried to frame the McNeely case as outlining the circumstances under which an officer can take your blood, breath, or urine for chemical testing. But McNeely actually does not spell out those circumstances, and in fact places a great burden on the state. McNeely states that “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.” That means the police have to at least attempt to get a warrant before taking your blood. Believe it or not, this is not a new law. Warrantless chemical tests of blood, urine and breath have been deemed to have violated the Fourth Amendment right against illegal search and seizure for some time, as anunciated in Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, (1989). The problem has been that there are exceptions to the warrant requirement, and one in particular has been distorted into a systematic violation of the Fourth Amendment in Minnesota for decades. One exception is exigent circumstances. The State must demonstrate that there is a grave exigency to obtain the chemical test in a certain period of time, and that obtaining that evidence would be delayed significantly if they had to get a warrant. Minnesota DWI law provides that the chemical test must be able to demonstrate the alcohol concentration within two hours of driving. The courts in Minnesota have erroneously ruled that, because alcohol starts to leave your system after it goes to your brain, this creates a “per se” exigency. McNeely specifically rejects and nullifies this per se rule. The U.S. Supreme Court acknowledged that much of the law surrounding chemical testing for alcohol is quite old, and that modern technology allows for police to obtain warrant telephonically in a matter… Read more {+}
McNeely and You
22 May,2013 Alex DeMarco
Tags: Alex De Marco, DWI Attorney Minnesota, DWI test refusal, McNeely, McNeely applies to breath test, McNeely applies to urine test, Minneapolis DWI Lawyer, Northfield DWI Lawyer, Saint Paul DWI Lawyer