Minnesota Rulemakers, You Got Some 'Splainin' To Do

Posted On August 28, 2015

Yesterday I posted about my client, "Kate,| whose minor traffic violation metastasized into criminal charges for DWI and gross misdemeanor test refusal. Everyone agrees that Kate didn't refuse to test, but she was physically unable to provide a sufficient sample of breath or urine.

Several seasoned attorneys reached out to me to suggest the affirmative defense of |physical inability| in rule 7502.0430:

Failure of a person to provide two separate, adequate breath samples constitutes a refusal, unless the failure is the result of physical inability to provide a sample, in which case a sample of blood or urine must be provided by the person.

Guess what? That rule no longer exists. The Department of Public Safety repealed the rule years ago without telling anyone.

It sounds Orwellian, but it's real, and it happens all the time.

Normally when the government wants to change a ruleâ??especially a rule that could mean the difference between a gross misdemeanor conviction and a dismissalâ??it has to provide the public with notice and an opportunity to be heard. That is due process.

In this case, with the |physical inability to provide a sufficient breath sample| rule, DPS decided to skip due process in favor of the expedited process for permanently changing agency rules without holding a public hearing.

From the Minnesota State Register, Monday, May 2, 2011:

Minnesota Department of Public Safety (DPS) and Bureau of Criminal Apprehension (BCA)

Notice of Intent to Adopt Expedited Rules without a Public Hearing

7502.0430 [REPEALED]

Just change the rule when nobody's lookin', and presto! No more physical inability defense! Can't blow hard enough or pee on command? You're guilty of a gross misdemeanor. Call me crazy, but I've got a problem with that. (And I imagine Kate will too.)

If you read our blog regularly, you've probably noticed that I put our Constitution on a pedestal (where it belongs, dammit). If freedom were a religion, the Constitution would be its sacred text, and due process would top the list of commandments. In order for democracy to work, government must remain transparent and accountable to the people it serves. In my humble opinion, Minnesota government's got some â??splainin' to do.