DWI, the Current State of the Law, and where we go from here.

There are many attorneys that handle many DWIs for a wide range of fees.  DWI is the most common crime in Minnesota, and at any time in a criminal defense lawyer’s career,  20%-40% of their case files are likely DWIs.  Getting DWI cases is not hard.  If they’re in the phone book, if they’re answering their phone a night, a criminal defense lawyer is going to get plenty of DWI calls, especially around the holidays.  While this results in good business for the attorney, the fact is, it also remains a thorn in their side.  Secretly, most of us hate DWI cases, because the case law is overwhelmingly in favor of the state, and raising all possible challenges to a DWI is as much work as any felony case but pays a lot less. However, by attacking a DWI from every angle, a good lawyer can either set up to beat a DWI, or obtain VERY good results for someone who is in a whole lot more trouble.   VERY recently, new developments in DWI law have developed which make your decision of who you hire for current, pending DWI matters absolutely critical.

Long ago we talked about Missouri v. McNeely and its potential impact on DWI moving forward.  Despite a very well reasoned and clearly stated opinion that directly addresses even Minnesota’s implied consent law and covers all manner of exceptions to the warrant requirement, candidly, Minnesota has chosen to completely ignore the Supreme Court of the United States and engage in incredibly complex acrobatics to get around what was clearly stated, and 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. ”  The Supreme Court ruled long ago that blood, breath, and urine tests are all searches for purposes of the Fourth Amendment.  Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, (1989).

Often we attorneys dazzle our prospective clients by explaining to them the holding in McNeely and it’s offspring, and by talking about the analogies between home searches and the search of their person in the context of a DWI.  It’s easy to do so because, frankly, it’s not complicated, and any person of intelligence can understand exactly what the opinion says.  But again, the Courts in Minnesota have chosen specifically to wield unruly complex arguments to steer clear  of the obvious.  And so eventually the newly charged DWI defendant asks “So will this beat my DWI?  Has it worked?”   The candid answer should be given:  On the whole…No.  As the Attorney General is fond of quoting in memo after memo, over 80 cases have gone to the Minnesota Court of Appeals, and each one has failed, because, essentially, in each case the Court of Appeals has found that the individual, particular driver, under the “totality of the circumstances” analysis required by Brooks, has ruled that the the driver independently consented to the test.  That means that they ruled it was not the implied consent threat of being charged with a crime that caused a person to submit, but something else.  Virtually NONE of the opinions cite to any unique circumstances that make the drivers in those cases different than a common DWI implied consent test.  In fact, most of those cases ended up at appeal because they had circumstances that spoke strongly against their voluntary consent.  Alas, the Brooks analysis doesn’t actually exist.  It’s a fiction.  The Court of Appeals has essentially rubber stamped each and every test that has come before it.

However, one case has now emerged from the Court of Appeals, and the Supreme Court of the United States is now taking action directly aimed at Minnesota law.  This provides a window of opportunity to challenge your DWI.

That case is State v. Trahan, A13-0931 (October 13, 2015).  It provides, most notably, that teh refusal of a blood test cannot be criminalized.  We already have a litany of case law noted in McNeely and other opinions that indicate blood, breath, and urine, are all tests for fourth amendment purposes.  It is only a matter of time before the chips inevitably fall to a return of full fourth amendment protection.