Beating Old Urine and Blood DWIs: Let's Get Retro!
We previously blogged about retroactive application of constitutional rulings. The lesson was simple: when a law is struck down as unconstitutional, it was always unconstitutional; it is as if the law was never on the books.
Over the past few weeks we have argued this issue at the Minnesota Court of Appeals multiple times. The state has consistently argued that the recent decisions in Birchfield/Bernard, Thompson, and Trahan should not be applied to cases that arose before those decisions were issued. So, in their mind, when a driver is threatened with a crime for refusing a blood or urine test, it makes no difference if the threatened crime is later ruled unconstitutional. They say "it was true at the time, no harm no foul."
First, there is a clear harm when law enforcement threatens drivers with an unconstitutional crime. And second, the threat was never true because the crime was always unconstitutional.
The United State Supreme Court has identified two different types of constitutional rulings: procedural and substantive. Procedural rules are designed to ensure accuracy of convictions. An example of a procedural rule would be the Friedman right to counsel. These rules do not necessarily go back in time to cases arising prior to the decision--as in Friedman, where the holding was limited to the cases still on direct appeal and not cases that were already decided.
Substantive rules, on the other hand, are rules that change what conduct can be criminalized, and these rulings must be given complete retroactive application. Like we said before: it is as if the law never existed. Birchfield, Thompson, and Trahan explicitly prevent states from criminalizing the conduct of refusing blood or urine tests. These are clearly substantive rules.
So, if any defense attorneys run into this issue they should not be misled by a prosecutor or Attorney General telling them there is no constitutional violation because the misleading advisory was "true at the time it was read." No. It was never constitutional, so it was never true.