Brooks-Style Consent: Valid Forevermore? A Dissenting Opinion Suggests Otherwise.

Posted On November 07, 2014

It's been a year and a half since Missouri v. McNeely and more than a year since State v. Brooks. In that time, the law regarding DWI's in Minnesota has been all over the map, a roller coaster of dismissed test results and conflicting decisions. Lately, however, we've seen a steady stream of decisions from the Court of Appeals, all saying the same thing: everyone who drives in Minnesota is "freely and voluntarily| consenting to warrantless searches of their blood, breath and urine. From a defense standpoint, it's both surprising and frustrating â?? surely, not every single driver freely and voluntarily consents to a search, and the fact that in approximately 50 recent decisions our Court of Appeals has universally concluded that the driver |consented| certainly gives the appearance that Minnesota has adopted a new (and automatic) exception to the warrant requirement in Minnesota, replacing the previous automatic exception that was so recently rejected by the United States Supreme Court in McNeely.

As prominent Minnesota attorney Joe Friedberg, who was quoted in the Star Tribune on Monday, said, |The appellate courts have shown little or no respect for the McNeely holding...they've adopted the philosophy that the case only applies in Missouri and to McNeely.|

Yet this week we saw a glimmer of Appellate Fourth Amendment light shining down through the cloud of warrantless stagnancy. A Minnesota Court of Appeals decision (linked here) contained a dissent from the Chief Judge himself that came out and said what Ramsay Law Firm has been saying for over a decade (*see this Star Tribune article co-written by Chuck Ramsay from January, 2006): if there is any doubt, law enforcement should get a warrant in DWI cases instead of hoping to prove |consent| after-the-fact.

In another decision, the Chief Judge also noted that law enforcement had best begin obtaining warrants, making it clear that |the message to law enforcement should be that a warrant is always required under the Fourth Amendment, except in emergency situations where exigent circumstances exist.| In that case, the Chief Judge agreed with the ultimate decision that a warrant was unnecessary, but felt compelled to send a specific message to everyone involved in DWI enforcement: start getting warrants instead of relying on exceptions in every single DWI arrest.

These two dissents stand out from the rest of the cases decided this week (and in the last year), in part because our Courts are still struggling with the idea of |consent| in DWI cases, where many drivers (especially drivers who have never been arrested before in their lives) are scared, intimidated, confused . . . and possibly impaired. For these people, spirited away to jail in handcuffs, the Minnesota Implied Consent Advisory (read by the officer that just arrested them) is incredibly confusing and inconsistent: a driver is told that they are |required| by Minnesota law to take a test, and then later casually told that they have a limited amount of time to make a |decision.| |Required| is, of course, a word designed to eliminate the concept of choice, while |decision| at least makes it sound like there is a real choice involved. To most, however, it sounds like a clear-cut ultimatum â?? not a |choice|â??which is the crux of the battle that continues in Minnesota's appellate courts.

Perhaps today, in light of these two recent opinions, we are witnessing the first sliver of change in the Court of Appeals' attitude towards Brooks-type consent. We have to ask: Is this the moment where the pendulum begins swinging back?