The Impact of McNeely: Fundamental Changes For Minnesota DWI Law

Posted On May 07, 2013 by Daniel Koewler

Nobody can deny the tremendous impact the U.S. Supreme Court's decision in Missouri v. McNeely will have on how we handle Minnesota DWIs in the future. The McNeely decision breathed some much needed life into what many perceived as an ailing and weary Fourth Amendment - an Amendment that, together with the First Amendment, forms the absolute bedrock of a free society.

We've been preparing for years in the hopes that our Courts - as stewards of the Constitution - would interpret the Fourth Amendment in a way that makes sure that it actually does apply to DWI arrests. And now they have.

But change is difficult, even when it is staring you in the face. As every state in the union comes to terms with the new legal landscape post-McNeely, Minnesota is facing a particularly difficult upheaval, much more than most other states. This is due to two unique aspects of Minnesota law - the criminalization of test refusal (coerced consent) and the codification of suppression (I'll explain that in a minute).

First, consent: The vast majority of states didn't take the extreme step of outright criminalizing test refusal; Minnesota is in the minority of jurisdictions that makes it a crime to withhold your consent to a warrantless search. So, many states can safely wade through their pending and future DWI cases relying on the fact that most people will say "yes" when asked to submit to a blood, breath or urine test, and their consent eliminates the need to obtain a warrant.

But that's not Minnesota - in Minnesota, "yes" comes at the barrel of a gun, and can hardly be considered to be true consent. When saying "no" is a crime, it will always be nearly impossible for the government to persuasively argue that anyone is actually consenting to submit to a test.

Second, suppression: the courts have had a long-standing rule that evidence obtained in violation of the Constitution is inadmissible in court, referred to as the "exclusionary rule." There are a lot of policy reasons behind this rule, but it is sufficient to point out that if this illegally obtained evidence wasn't suppressed, we could just as well delete the entire Fourth Amendment and call it the "Bill of Guidelines" instead of the Bill of Rights.

Now, the federal courts have recently developed a new doctrine dealing with suppression, calling it the "good faith" exception to the warrant requirement. Again, it suffices to say that if an officer conducts a search that he believes to be constitutional, but that law is later overruled, this "good faith" exception basically means that even though the search was illegal, the evidence is still admissible in court.

Again, in many other states this means that all of the DWI cases put on hold pending McNeely didn't gain much from that decision. Their searches may have been illegal (unless they were consented to), but the evidence comes before the jury anyway, so it's a pretty hollow victory.

But Minnesota is different - where our Legislature made the questionable decision of criminalizing the act of not consenting to a warrantless search, they also made the inspired decision to pass a specific law that mandates the suppression of evidence for any illegal search. Minnesota Statute 626.21 says in no uncertain terms that illegal searches = suppressed evidence. Our own Minnesota Supreme Court has also repeatedly rejected the need for such a rule.

So Minnesota is in a pickle (to be fair, it's a pickle that could have easily been avoided): prosecutors can't say with a straight face that everyone has been consenting to their blood, breath and urine tests. The best they can say is that drivers keep saying "yes" after being properly threatened. And then, prosecutors have no "good faith" exception to fall back on, meaning if they want to maintain their DWI cases against our clients, they are going to have to prove that there simply wasn't enough time to get a warrant before our client's slipped below the legal limit. Considering the fact that we're still not properly training our officers on the simple task of obtaining a telephonic warrant, I don't see that argument being very successful.

There will be some significant growing pains in Minnesota as a result of the McNeely decision. There is a good chance many DWIs will be thrown out of court. But in the end, everyone will have a renewed respect for the Fourth Amendment; courts, prosecutors, defense attorneys, the legislature, and the general public. And that, too, makes us all safer.