The DWI Suspect: Lady Liberty's "Red-Headed Step-Child"

Posted On July 06, 2015

The State of Minnesotaâ??courts, cops, and legislatorsâ??provides more constitutional protection to convicted criminals than it does to drivers arrested under suspicion of drunk driving.

You read that right. Incarcerated, guilty beyond a reasonable doubt, violent criminals enjoy greater constitutional liberty than innocent-until-proven-guilty drivers suspected of driving while impaired.



Applicable Law

Minn. Stat. §§ 241.33 â?? .339

Corrections Exposure to Blood-Borne Pathogens

Minn. Stat. §§169A.20 (DWI)

169A.51 â?? .53 (Implied Consent)

Reason for blood testing

Blood may contain blood-borne pathogens

Blood may contain alcohol or substances

Health/Safety Risk

Blood-borne pathogens may be transmitted and may cause illness resulting in injury or death

Blood containing alcohol or substances may indicate impaired driving ability; impaired driving may cause accidents resulting in injury or death

Standard for seeking blood sample

Corrections employee must report "significant exposure|

Law enforcement initiates a traffic stop

Licensed physician must determine that |significant exposure| has actually occurred

Law enforcement makes determination of probable cause to arrest suspect under suspicion of DWI

Consent required?

Yes, voluntary, express, intentional consent

Implied by statute

|Any person who drives, operates, or is in physical control of a motor vehicle â?¦ consents â?¦ to a chemical test of that person's blood, breath, or urine â?¦ when an officer has probable cause to believe the person [has been driving while impaired]|

Note: By driving on Minnesota roads, drivers impliedly |consent| to take a test; "consent" can be unintentionally, unknowingly, unwillingly given, through action (submitting to testing)

Language in the statute

|[T]he correctional facility shall obtain consent from the inmate before collecting a blood sample for testing for blood-borne pathogens|

|The consent process shall include informing the inmate that the inmate may refuse to provide a blood sample and that the inmate's refusal may result in a request for a court order â?¦ to require the inmate to provide a blood sample|

|[A]t the time a test is requested, the person must be informed: that Minnesota law requires the person to take a test â?¦ [and] that refusal to take a test is a crimeâ?¦|

Note: Any course of action other than submitting to a test--even exercising the constitutional rights guaranteed by the Fifth Amendment (right to remain silent, no compelled self-incrimination)--is the crime of test refusal

What happens if the subject does not consent to give a blood sample?

Inmate does not take a test, no test is performed, and there are no penal or civil consequences

Driver does not take a test and is charged with DWI and test refusal


Driver submits against her will to avoid the criminal charge of test refusal, and the court later finds that she |voluntarily consented| under the totality of the circumstances (in Minnesota courts submission = consent)

Due process protections

|A correctional facility or a corrections employee may bring a petition for a court order to require an inmate to provide a blood sample for testing for blood-borne pathogens. â?¦ The correctional facility shall serve the petition on the inmate three days before a hearing on the petition." The court may order the inmate to give blood if "the court finds a compelling need for the test results. ...[T]he court shall weigh the need for the court-ordered blood collection and test results against the interests of the inmate, including, but not limited to, privacy, health, safety, or economic interests|

|It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine|

Note: Law enforcement's unofficial policy--and officers' standard practice--is that no search warrant is required for DWI suspects, despite the availability of telephonic warrants

Right to counsel?

|[T]he inmate may arrange for counsel in any proceeding|

|[T]he person has the right to consult with an attorney, but â?¦ this right is limited â?¦ it cannot unreasonably delay administration of the test|

Can test results or test refusal be used in civil or criminal proceedings?


The test results may not be used as evidence in any criminal proceedings or civil proceedings, except for procedures under sections 144.4171 to 144.4186

Yes, both

Civil legal consequences


If |the person refuse[s] to submit to a test, the commissioner shall revoke the person's license [without a hearing]â?¦ even if a test was obtained ... for a period of not less than one year|

If a person fails a test (0.08 BAC or higher), the commissioner shall revoke the person's license [without a hearing] "for a period of 90 days"

Criminal legal consequences


First time DWI is a misdemeanor:

Up to 90 days imprisonment, up to $1,000 fine, or both

First time test refusal is a gross misdemeanor:

Up to one year imprisonment, up to $3,000 fine, or both

Convictions and revocations will be used to enhance future criminal and civil DWI-related offenses

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