McNeely and You

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 of minutes. Indeed, 21 states currently use telephonic warrants to obtain chemical tests for DWI. Exigency can only demonstrated by a “totality of the circumstances.” That means the State must show a number of reasons why a warrant could not be obtained, or at least applied for. Few if any law enforcement agencies have begun seeking warrants in DWI cases in Minnesota, leaving virtually every DWI wide open to challenge.

The other exception to the Warrant requirement is consent. Minnesota has implemented a legal fiction called “implied consent.” It stands for the proposition that, by virtue of having a driver’s license and acquiring the privilege of driving on the roads, you consent to have your body tested for alcohol. However, this implied consent alone has never been sufficient to overcome the warrant requirement for chemical testing. The implied consent “is insufficiently voluntary for Fourth Amendment purposes.” State v. Netland, 742 N.W.2d 207, 214 (Minn.App.,2007) citing State v. Mellett, 642 N.W.2d 779, 785 (Minn.App.2002) . That’s because a driver’s consent is only “obtained” by the threat of being charged with a crime if you don’t test.

So if the consent is coerced and not voluntary, and never has been sufficient to waive your protection from illegal search and seizure, how have officers been able to take samples from people and get away with it? The sole justification for this has been the single factor exigency of the elimination of alcohol from the human body, which is specifically destroyed by McNeely. The implied consent is left as ineffective as it ever was against the warrant requirement since single factor exigency has been eliminated. McNeely does not so much change the law. It restores the law as it always has been and should be.

Multi-factor exigency and/or true and un-coerced consent have been exceptions to the warrant requirement for all sorts of searches, even your car or your home. However, refusing to consent to a search of your home without a warrant has NEVER been deemed a crime. DWI investigation is the only circumstance in which essentially asserting your right against illegal search and seizure gets you charged with a crime.

Don’t let them get away with it. Don’t let your attorney allow the state to get away with it. If you’ve been charged with a DWI, you need an attorney prepared to assert your fourth amendment rights,regardless of what method of chemical testing was used. You absolutely need an attorney to get it done right. It’s not just about you. It’s about the rights of our whole society. Challenge your DWI.Contact us today for a free consultation and to explain in detail how we can help you.