Just say everything but “no” to implied consent.

“Finally, Petitioner argues Mr. Jones was subjected to an unreasonable warrantless search. Contained within this argument the court finds Petitioner’s more persuasive assertion: Mr. Jones did not refuse to take a blood or urine test because he stated he would take a test once a warrant was obtained.”

Recent order in Rice County DWI Implied Consent case (Names changed).

So we haven’t blogged DWI in awhile and we’re gonna blow through this like Terry Tate enforcing an office. First of all, for total newbs, we just dropped “implied consent” on you. What’s that? The law that says “hey by virtue of driving in Minnesota, you consent anytime to have yourself tested for booze or drugs whenever we want.” You’d probably remember this from your driver’s license application, if it was on there, which it’s not, but ignorance isn’t a defense, so on we go.  Bottom line, besides the criminal charges, “State vs. you”, there’s the civil case, “You vs. Commissioner of Public Safety”, which you need to file within 30 days of receiving your notice of revocation. If you don’t do that, your license is gone.  Period.  Hard and fast deadline.  That’s the two sides of DWI law, the criminal, the civil.  So this comes from that challenge to the license revocation.  How about the criminal?  It was so good, the test refusal charges, the serious DWI Charge, was dismissed by the prosecutor upon our motion before we even got to a hearing.  The state has now has to prosecute the matter with no field sobriety tests, no alcohol concentration, no evidence.  How did it get so good? Because this guy called an attorney who understood what he needed to know right there, right then.

We’ve written previously regarding the bombshell that opened up DWI litigation three years ago in Missouri v. McNeely. If you’re facing a DWI and you haven’t heard of this court case, the one liner states: “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’s the Supreme Court of the United States; the highest Court in the land.  Blood, breath, and urine tests are all searches for fourth amendment purposes. (Skinner v. Railway Labor Executives Association). Some people thought it didn’t apply to Minnesota because we don’t force a test like Missouri.   Call it Minnesota nice, or laziness, whatever you want, but the bottom line is that a person is given a supposed “choice” on whether to take the test or not.  In other words, we say “we don’t wanna touch you or force you to do anything, but if you don’t subject yourself to this warrantless search, we’re gonna charge you with an even worse crime.”  So initially,some folks thought this didn’t apply to Minnesota.  Oops.  Two urine test cases from Minnesota get reversed by SCOTUS a few weeks later.  It suffices to say a lot of case law has developed in Minnesota since that case, basically nearly a hundred cases of sheer acrobatics to avoid the obvious, followed by one opinion that actually made sense. We could give you the law journal review, but we won’t. Instead, we’ll give you the links, a very inadequate but not inaccurate summary, and then cut to the damn chase on how we figured out how to beat DWI AT THE PHONE CALL by potentially violating attorney ethics rules (come at me board!).

State v. Brooks

Held: Because this guy is really experienced in getting DWIs, and he got to talk to a lawyer, even though we’re tacitly acknowledging that McNeely does away with per say exigency and that implied “consent” isn’t a sufficient waiver for fourth amendment purposes, we’re gonna say that this guy individually and independently consented.  Court has to do an independent analysis in each case to determine whether the person actually consented, based upon a “totality of circumstances” including (1) the nature of the encounter; (2) what was said; and  (3) the type of person the defendant is. Loose analysis of our firm follows:

(1) “The nature of the encounter” in nearly every DWI is one in which, because someone smells like booze and makes a turn after nine steps like a normal person instead of “a series of small steps” as instructed, the police shackle them up and put them in car like an animal, abandon their car on the side of the road or tow it, carry them to a holding cell that smells like despair, B.O., and the yearly coat of paint that seems almost mandatory in such facilities, and says “hey blow in this tube or get charged with a crime”

(2) What was said…the implied consent advisory is what is said. It’s literally read verbatim from a computer. Now the court just said that’s not what they are relying on…but it’s what is said…every time. The argument becomes more circular than a billiard ball.

(3) The type of person the defendant is. Nobody has any damn clue what this means. Maybe you like long walks on the beach, action movies, and you’re a vegan, and this matters somehow.  Ok more likely it just means how experienced the suspect is with the justice system…though that hasn’t seemed to make a difference in one single appellate opinion.

State v. Bernard

If, hypothetically, a judge would have signed a warrant to take a test from the suspected drunk driver anyway, then the test is admissible, because hindsight, screw process, and courts like MADD and prosecutors and view all DWI law as a nuisance. Also Refusing a search of the person that’s been deemed a search for fourth amendment purposes does not implicate a fundamental right…at least regarding breath. Maybe urine or blood is a possibility.


…Bout 80 some appelate cases finding every single driver independently consenting to testing, treating every single DWI case the same, thus basically keeping DWI the same routine mill it was when single factor exigency used to justify searches.  In other words, trying to render McNeely inapplicable… (No links, google if you you actually think this is fun).


—————————————— and scene:

State v. Lindquist

(Paraphrase) “Hey if police officers searched illegally but were following a routine like a zombie that they’ve been taught from their very first DWI training to now with zero updates, ‘good faith’ allows it to be admitted in court against you.” Later this has been almost universally interpreted to be only applicable to conduct before McNeely. That’s the only redeeming factor.  Basically don’t worry about this if you’re DWI isn’t before April 17, 2013.

State v. Trahan

FINALLY the court starts to get some things right. A blood test is pretty intrusive and criminalizing its refusal is not constitutional for a lot of reasons. Further the implied consent advisory fails strict scrutiny and doesn’t give the suspect due process. Essentially, it’s misleading as to blood testing, because it’s telling you that refusal is a crime, which the court is now ruling it’s not. Also, good faith is only an exception applicable to the admissibility of evidence.  Since this is a lawful refusal, no evidence was collected, ergo, good faith has nothing to do with it. (Thus why in the hell would you submit to a test that an exception could be applicable to?)

State. V. Thompon

Essentially you can refuse a blood or urine test. Fine, to quote the opinion:  “[N]o exception to the warrant requirement would have justified a warrantless search of Thompson’s blood or urine.” State v. Thompson, A15-0076, p. 10 (Minn.App. Dec. 28, 2015). “Because a warrantless search of Thompson’s blood or urine would have been unconstitutional, Thompson’s fundamental right to be free from unreasonable searches is implicated.” Id. “The test-refusal statute…fails strict scrutiny as applied to Thompson and Thompson’s right to substantive due process under the United States and Minnesota Constitutions was violated.” Id. p. 11.


So basic review: If a suspected drunk driver is offered a blood or urine test, he/she can basically refuse and it can’t be criminalized. Good to know, but it leaves open a few questions. What if they take the test?  Is it admissible?  What about the license revocation proceedings, separate from the criminal proceedings? What about breath testing?  That doesn’t even cover the basic fact that a myriad of district courts will ignore clear and logical binding case law because, “hey, drunk driving and screw you.” (Anonymous and unpublished).

Well the very constitutionality of the refusal statute, breath tests included, is up for review by the Supreme court of the United States, and will be argued April 20th. Unfortunately, by taking the test, even a blood or urine test, you and you lawyer now left not only having to argue over the constitutionality of the statute, but the admissibility of the test, which, despite the unconstitutional condition doctrine, remains subjected to a “totality of the circumstances” analysis of Brooks. And while it’s clear from current governing case law in Minnesota that the crime of refusal for blood or urine test should be tossed, the question of whether such a refusal can subject a person to license revocation remains a live issue.  But what about breath testing, which is what is asked for in the vast majority of DWI case?  It is critical at that juncture that you remember the following:

Note the judge’s ruling here is absolutely 100% applicable to breath testing. The bottom line, this guy called Alex DeMarco when he was arrested. Alex told him to assert his rights.  He never refused. He repeatedly and genuinely stated he would take the test if a warrant compelled him to do so. They never even attempted to obtain a warrant.  “Based on the facts before the court, the only impediment to Deputy Gafney obtaining a blood or urine test from Mr. Jones was the failure to obtain a warrant.” Understand the breadth of the judge’s opinion. The Court tried to avoid directly ruling on the constitutionality of the request and the statute.  The Court doesn’t want to create some precedent in their county regarding the constitutionality of the Statute.  Instead, they tried to issue a narrow ruling upon whether this individual person had actually refused in this case.  Because Mr. Jones continually represented that he would take the test with appropriate warrants, the court ruled he did not refuse.  The Court initially seemed to try to avoid the legal issue at hand, but in so doing, ruled in a manner that is applicable to all DWI testing, including breath…but only if the suspect says the magic words.  Understand, this doesn’t necessarily toss your pending DWI.  What it DOES open to path to is a procedural method whereby any future suspects of DWI can essentially avoid a license revocation, or at least be subjected to it for only a very short period of time until a good lawyer gets the revocation rescinded.

It is true that Minnesota law recognizes a refusal by conduct, but when the assertion is repeatedly made that one would genuinely submit to the order of a warrant, it cannot be deemed refusal. As the judge in this case stated:

“[T[his case is factually different from the Minnesota court cases which have recognized conduct-based refusals. Mr. Jones did not consent to a test and then fail to provide an actual sample or fail to cooperate with the taking of the sample. Instead, when asked if he would take a test, he repeatedly asserted that he was not refusing and consistently maintained he would take a test if Deputy Gafney obtained a warrant. Nothing in Mr. Jones’ words or conduct would indicate he did not actually intend to comply with a test if a warrant was obtained.”

Mr. Jones’ conduct was the direct result of him calling St. Paul Criminal Defense Lawyer Alex DeMarco. As an attorney experienced in DWI, this result was not the product of accident, but the product of design and keen legal advice. When Alex received the client’s phone call just after 2:00 AM, he began a direct stream of detailed communication with the client. Mr. DeMarco had texted him a PDF of fourth amendment case law and further instructed him on what to say. He also took the step of faxing the police department and invocation of his fourth amendment rights in a DWI case well before Mr. Jones was asked to take a test.  It is critical, in this case, that, as an experienced DWI Attorney, Alex DeMarco took the extraordinary steps that he did at 2:30 AM on the offense date. The result of this was not a technicality, not some fancy maneuver to “get the client off.” Rather, it was a genuine and informed instruction for the suspect to invoke his legitimate fourth amendment rights, and this was successfully done. The client followed Alex DeMarco’s instructions to the letter, never refusing the test, but indeed affirming that he would take the test if his fourth amendment rights to a warrant were vindicated.

Moreover,the breadth of this result cannot be overstated. Note that the issue of the constitutionality of criminalizing refusal is, by Trahan and Thompson, only in the defendant’s favor with regard to blood or urine testing. But this court’s ruling turned on whether or not the suspect actually refused. In other words, this court’s ruling is as applicable to breath testing as it is to blood or urine testing. This leaves us with a profound directive which Alex DeMarco would say is the best advice for all would-be night time implied consent callers when they are arrested for DWI.


When you are asked to step out of the car to perform field sobriety tests….you’re going to jail. There is no point in submitting to the field sobriety tests.  The tests only provide further evidence needed to arrest you for DWI and also charge you with the generic “driving under the influence” subdivision which can be prosecuted without any chemical test whatsoever.  The law on probable cause to arrest for DWI is so utterly hopeless that just smelling like booze allows them to ask for a roadside test, as the court held even in this case.  You can’t control how you smell.  You can’t control what your eyes look like.  But you need to know that the officer cannot compel you to do any tests.  It is not a crime to refuse roadside field sobriety tests, and the roadside breath test.  It simply gets you arrested, which you invariably would be anyway.

Here’s the raw truth: RESIGN YOURSELF TO BEING ARRESTED. Shut your mouth, stop trying to talk your way out of it, because any officer can simply manufacture cause to arrest you, or arrest you on observations anyone could exhibit while sober, with almost no recourse for challenge in court. Write off the night, or weekend. You’re going to jail.  It will be worth it, vs. the fortune in fines, reinstatement, and other fees you will incur if you just try to be “cooperative.”  DO NOT take field sobriety tests, NO MATTER WHAT THE OFFICER PROMISES YOU.  DO NOT take the road side breath test.  DO NOT admit to drinking.  DO NOT answer questions about where you were coming from, or where you were going to.  If you’re not in the car when the officer arrives, like say in a parking lot, DO NOT answer any questions about how long you’ve been there, or how long ago you drove.

When you get to jail, you’re going to be asked to submit to a chemical test. It could be your blood, your breath, your urine. The fact is, you’re going to be given the opportunity to call a lawyer. It’s questionable whether that’s even a good idea IF YOU’VE READ AND UNDERSTAND THIS ARTICLE. This is for two reasons. In the first place, the Brooks case ruled, in part, that the opportunity to consult with counsel weirdly makes anything you do after that more admissible in court. In the second place, most attorneys are not going to advise you the same that we have here.  That’s because refusal to take the test is statutorily a crime in Minnesota, and ethically, an attorney is not allowed to tell you to commit a crime. Some lawyers are living in the concrete orthodoxy of the past, and there have been ethics courses implying that a lawyer should tell a person to submit to the test.  They will also tell you that refusing to take the test will revoke your license longer, which is true…IF you actually refuse.  This presents to the confused and incarcerated client an incredible paradox: That driver has a right to to request a warrant, but is told to submit to a test to avoid a refusal charge, and thereby, the attorney on the phone simply twists the knife of coercion further toward submission.

No attorney wants to risk malpractice or getting sued for telling a client to not submit to a test upon bare request. Well Alex DeMarco is here to send an absolutely clear message: DO NOT TAKE THE TEST WITHOUT A CLEAR MANDATE FROM A JUDGE OR MAGISTRATE. He’s also sending another message: DO NOT REFUSE THE TEST. Maintain a clear and sincere directive: I will take test test if a warrant is obtained. If they ask whether you will submit without a warrant, don’t answer it. No matter what. Remain steadfast that you will submit to a test if a warrant is obtained. Don’t ever use the word “no” or “refuse.” Importantly, be sincere about it. There are anecdotes of officers actually getting warrants for chemical tests in DWI cases. If you are presented with such a warrant, signed by a judge, THEN submit to test. Follow the court’s order. Accordingly, Alex is not advising you to refuse a test. He’s categorically telling you to submit to a test that is lawful and mandated by a warrant, and to demand such a mandate.  Nobody should submit to a test without a warrant, but nobody should refuse a test. By all applicable case law, that should preserve your right to remain free of the most serious criminal charges with the least amount of evidence being used against you.

So to review: DO NOT submit to field sobriety tests. DO NOT submit to the roadside breath test. DO NOT admit to drinking, at all.  Do not answer any factual questions other than your name and date of birth.  RESIGN YOURSELF to being arrested. Once arrested and asked to submit to a breath, urine, or blood test at the jail or hospital, indicate emphatically and without equivocation, that you WILL submit to such test with a warrant. Do not take the test without such a warrant. Do not verbally REFUSE the test without such a warrant, but merely maintain, and agree, that you will take a test with a warrant. If such a warrant is actually signed and presented to you, then and only then should you submit to the test.