McNeely Myths: Debunking Arguments Regarding McNeely's Impact on Minnesota DWI Tests

Posted On June 19, 2013 by Daniel Koewler

The battle lines are being drawn, and across Minnesota prosecutors and defense attorneys are butting heads over the scope and impact of the United States Supreme Court's (SCOTUS) decision in Missouri v. McNeely. The McNeely decision was a shock to many prosecutors - few people (with our firm being a notable exception) expected the SCOTUS to completely gut one of the fundamental assumptions that have run through decades of DWI experience in Minnesota.

That fundamental assumption - fundamental and wrong - was that the Fourth Amendment didn't apply to DWI searches like blood, breath and urine tests. Now we're questioning decades of legal decisions and statutes, rooting out the false assumptions and making sure that when the government obtains a DWI test, they're not violating the Constitution while doing it.

But while we're digging in, prosecutors are shooting back - many times, with arguments that have no basis in law and would be comical . . . if not for the fact that people's liberty is at stake.

Today we'll discuss one of these "myths in the making," the claim that the McNeely decision only deals with coerced blood draws . . . and leaves all other laws involving blood, breath and urine tests intact. This argument also claims that while that blood tests might be true searches under the Fourth Amendment, urine and breath tests are not, and do not require warrants.

It's an argument that's hard to understand, but easy to rebut. The government will typically claim (for example) that because urine tests are "less intrusive" than blood tests, people have a lesser expectation of privacy, and therefore police don't really have to consider getting a warrant. And to support their argument, they'll cite to the case of Skinner v. Ry. Labor Execs.' Ass'n. That case does, in fact, spend a fair amount of time weighing the government's interest in quick results against individual privacy interests, in a careful attempt to "assess the practicality of the warrant and probable cause requirements." Long story short, Skinner asks "just how intrusive is this search . . . in comparison to how important the evidence we're seeking is."

Sounds like a strong argument against warrants for breath and urine tests, right? Well, it sure would be, if the SCOTUS hadn't made it painfully clear this type of balancing only happens in "special needs" situations. What are "special needs" situations? Glad you asked! They occur only when a search is being performed "beyond" the typical needs of law enforcement. In fact, the court goes so far as to note that their opinion is based upon the assumption that law enforcement will never even have access to these blood, breath and urine tests. And prosecutors are citing to the Skinner case to support their arguments . . .

. . . seeming without reading the portion of Skinner that says this: . . ."Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or â??deep lung' breath for chemical analysis implicates similar concerns about bodily integrity and, like the blood alcohol test we considered in Schmerber should also be deemed a search.| And also this: |Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.|

Needless to say, if the prosecutor tries to argue that you have a diminished privacy interest in your breath or your urine, and that DWI convictions are just too important to bother with the Fourth Amendment, have them read the Skinner decision beginning to end. Then have them read it again. Then, look them in the eye and ask them if they think that a DWI breath or urine test is a "special needs" search, and wait for their answer.

Because it is certainly not.