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21st March 2017

The Minnesota Court of Appeals published an opinion this morning with a clear message to law enforcement: Stop misleading our citizens about what the DWI laws require of them.

Everyone wants safer roads, but at what cost? The liberties guarantied to us by the Minnesota and United States constitutions?

Brooks. Bernard. Trahan. Thompson. Now Johnson. Over the past several years, the Minnesota criminal defense bar has zealously litigated for freedom from unchecked government intrusions into the most sacred of places – the very bodies of motorists. Minnesota courts have listened.

In a unanimous opinion this morning, three judges at the Minnesota Court of Appeals determined that the State’s implied consent advisory misleads motorists who are asked to provide a urine or blood sample.

The Minnesota Implied Consent Advisory is a form read to everyone arrested on suspicion of DWI. In pertinent part:

Minnesota law requires you to take a test to determine if you are under the influence of alcohol or a controlled substance.

Refusal to take a test is a crime.

The problem? This advisory was created before Trahan and Thompson. Those cases held that the State cannot criminalize a motorist’s refusal of a blood or urine test, respectively. Therefore, the outdated advisory is misleading with respect to two out of the three testing options an officer may request a motorist to take.

That was precisely the scenario in Tyler Lee Johnson v. Commissioner of Public Safety (Appellate Court File No. A16-0502). In that case, Mr. Johnson was arrested for suspicion of DWI, the officer read him the implied consent advisory containing the language quoted above, and then asked him to take a urine or blood test. Ultimately, the State revoked Mr. Johnson’s license. The Court of Appeals determined that the misleading advisory violated Mr. Johnson’s constitutional right to due process. Accordingly, the court directed the State to reinstate Mr. Johnson’s license.

Central to the court’s decision is the fundamental notion that the government should not be able to trick its citizens when it comes to their fundamental rights and liberties. Our government was created for and by its people. Its agents should be transparent and candid when speaking to us about our rights. The United States Supreme Court articulated this principle as early as 1959 and it was reiterated by the Minnesota Supreme Court in 1991:

[D]ue process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.

Sounds reasonable. We should expect no less than candidness and fair treatment from the professionals that hold such tremendous power and authority in our lives.

Without doubt, there will be more changes to come for Minnesota’s DWI laws. We’ll bring them to you here.


If you or a loved one are facing criminal charges, contact attorneys David Lundgren or Adam Johnson at 651-888-2937 to discuss your options. We take great pride in protecting your rights.