Are Warrantless DWI Tests Still Legal in Minnesota after McNeely?–Part I

If you have a criminal DWI case or criminal DWI test refusal case, and/or civil implied consent driver’s license revocation cases pending, you may have heard of the recent U.S. Supreme Court decision in McNeely v. Missouri issued 4-17-13. In McNeely the U.S. Supreme Court held that Warrantless DWI Tests are illegal without consent or “exigency circumstances.” The U.S. Supreme Court said that Missouri could not take a non-consensual blood test from a driver in a standard DWI case (no accident) without either a warrant OR a showing of special circumstances like an emergency stemming from injured persons in a car accident (i.e. “exigent circumstances”). In McNeely, consent was not an issue since the driver refused to consent to the test. The U.S. Supreme Court specifically held that “Exigent Circumstances” do NOT exist just because alcohol exists in every DWI case. I have been arguing the same thing in many cases in Minnesota since at least 2008, as have many other expert Minnesota criminal defense attys.

The Minnesota Supreme Court has dodged the issue, in some respects, because they refuse to grapple with the issue of coerced “consent” in “implied consent” driver’s license revocation cases. NOW our Minnesota state Courts will be forced to deal with the issue head on.

The Minnesota Supreme Court is now forced to deal with the issue of “coerced consent” under the Minnesota Implied Consent Law because McNeely means that the theoretical underpinnings of Minnesota’s criminal DWI and civil implied consent driver’s license revocation laws have been ripped out from under themselves. A house without a foundation will surely fall. Before the U.S. Supreme Court ruled, I had discussed this pending case with many attorneys, clients and judges. Now that the United States Supreme Court has ruled, our foundational DWI case law decisions by the MINNESOTA SupremeCourt in State v. Shriner (Minn. S.Ct. 2008) and State v. Netland (Minn. S.Ct. 2009) are essentially null and void. These decisions are void because the Minn. S.Ct. held in each case that Alcohol DOES create a per se exigency in every CVO (Criminal Vehicular Operation) case (CVO=DWI w/accident and injuries to someone other than the defendant driver) (Shriner) and every standard DWI case (Netland). Thus, the Minnesota Supreme Court concluded that police do NOT need a Warrant OR your “consent” in order to get a sample of your blood, breath or urine in a DWI case AND that if you refuse such a test upon probable cause that you can be charged with the CRIME of test refusal. Now, Warrantless DWI Tests are dead, as is the crime of “DWI Test Refusal.”

He has won jury trial cases in misdemeanor and felony cases and in DWI’s and non-DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. He is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

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