Your Voluntary Consent Is Required

Posted On June 11, 2015

For DWI suspects in Minnesota, the right to consult with counsel has no bearing on the voluntariness of their "consent| to give blood, breath, or urine for testing.

Drivers have a constitutional right to refuse to consent to a warrantless search, and a statutory right to refuse to permit a chemical test, but lawyers can't advise drivers to exercise these rights, because doing so is a crime, for the client and the lawyer.

Under Minnesota law: Every person who commits or attempts to commit, conspires to commit, or aids or abets in the commission of any act declared in [Minnesota Chapter 169A - Driving While Impaired] to be an offense, whether individually or in connection with one or more other persons or as a principle, agent, or accessory, is guilty of that offense, and every person who falsely, fraudulently, forcefully, or willfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this chapter is likewise guilty of that offense.

Minn. Stat. § 169A.78.

It gets worse (or better, if you're a prosecutor). When a Minnesota DWI suspect tells the police:

"There is no way I will voluntarily consent to this test without a warrant! I know my rights!"

her attorney is ethically bound to advise her to submit to the warrantless search against her will. Any other advice would be a violation of Rule 1.2(d) of the Minnesota Rules of Professional Conduct:

|A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal ... .|

Sorry drivers, in Minnesota, your voluntary consent is required.