At Lundgren & Johnson, we take special care to stay informed of the latest updates related to anything in the DWI field. We have successfully handled DWIs throughout Minnesota with results including dismissals, jury trial aquittals, and appellate victories. We also write frequently on the topic of DWI laws and issues related to DWI testing. Our DWI Q&A is a must read for anyone facing a DWI charge. We have also provided a posting on the seven essential steps to take immediately following a DWI charge. In our post today, we focus on a specific topic related to DWI testing, namely, whether a person has a right to speak with a lawyer before making a decision to provide a sample of their breath, blood, or urine.
If you are arrested and a police officer presents you with a search warrant for a sample of your blood or urine for DWI testing, do you have the right to speak with an attorney before making your decision? The answer, in Minnesota, is no. This week, the Minnesota Supreme Court decided the long-awaited case of State v. Rosenbush, which holds that Minnesota’s limited right to counsel does not extend to a person under arrest and presented with a search warrant for their blood or urine. (The specific holding is with respect to blood tests only, but the holding will apply equally to urine tests).
The Rosenbush case was a 4-3 decision, meaing that four justices of the court agreed with the majority opinion, while three justices disagreed in the form of a written dissent. Before we analyze Rosenbush however, a discusison of Minnesota’s limited right to counsel in the context of DWI testing, as well as legislative changes made to Minnesota’s DWI laws, is necessary to provide the appropriate backdrop to the Rosenbush case.
The Origins of the Right to Counsel in DWI Testing
Under long-standing Minnesota law, driver’s faced with the decision of providing or not providing a sample of their breath, blood, or urine for DWI testing have enjoyed a limited right to consult with an attorney before making their decision. In the 1991 case of Friedman v. Commissioner of Public Safety, the Minnesota Supreme Court held that under the Minnesota Constitution, a driver arrested for DWI and asked to submit to a chemical test has a right to speak with an attorney before making that decision because the circumstances mark “a critical stage in DWI proceedings, thus triggering the right to counsel.”
The court in Friedman reached this conclusion, in part, because drivers under arrest and facing DWI testing need assistance in “coping with legal problems or assistance in meeting [their] adversary.” The Friedman court also wrote that a driver deciding whether to consent to chemical testing or not faces a “critical and binding decision,” requiring the assistance of an “objective advisor.” Under the statutory scheme in place at the time, the driver in Friedman was confused about the legal ramifications of her decision, and looked to the police for guidance. In establishing the limited right to counsel in Friedman, the Minnesota Supreme Court made clear that an “attorney, not a police officer, is the appropriate source of legal advice.”
Since the Friedman case, there have been a number of significant changes to the laws on DWI testing in Minnesota. These changes have come from the courts, as well as from the Minnesota Legislature in the form of new statutes. Our most recent post on some of these changes is available here. One of the most important changes to Minnesota’s DWI testing laws came when the Legislature codified the requirement that police officers obtain a search warrant before securing a sample of an arrestee’s blood or urine. The change in the Minnesota statutory scheme came on the heals of Birchfield v. North Dakota, a United States Supreme Court case that held while the police do not need a search warrant to obtain a sample of a suspect’s breath, they do need one in order to obtain a sample of a suspect’s blood. In short, and without digressing too far into the statutory and common law history, Minnesota has required the police to obtain a search warrant for a suspect’s blood or urine for DWI testing since 2017.
Changes in the DWI Testing Statutes
Since 2017, Minnesota has permitted officers to choose between offering a DWI susepct a breath test, or pursuing a test of the suspect’s blood or urine through the process of obtaining a search warrant from a judge. These search warrants are usually sought and received via fax, e-mail, or other electronic means. In the case of a breath test, an officer does not need to obtain a search warrant, because under the Birchfield decision, a breath test is considered a valid search incident to arrest. Blood and urine tests are not considered valid searches incident to arrest, and officers must seek and obtain a search warrant before taking a sample of a suspect’s blood or urine. The process of administering any given test is guided by statute.
Breath Testing
In the case of a breath test, an officer must read to a suspect Minnesota’s breath test advisory. This advisory requires an officer to provide the following advisory to a suspect:
- That Minnesota law requires the person to take a test to determine if the person is under the influence of alcohol;
- That refusal to submit to a breath test is a crime; and
- That the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.
The third paragraph of the advisory is the statutory codification of the holding from Friedman – that a suspect has a limited right to speak with an attorney before making a decision to proceed with breath testing or refuse. In the case of a breath test, a person may either submit to testing or refuse to submit to testing. Submitting to testing may provide incriminating evidence that can later be used against a person in court. On the other hand, a person who refuses testing can be charged with the crime of test refusal. But in any event, in the instance a police officer is seeking a breath test under Minnesota’s Implied Consent Law, a suspect has a state constitutional right to speak with an attorney before making their decision.
Blood or Urine Testing
In the case of a blood or urine test, the new statutory scheme directs that an officer must advise a suspect that refusal to provide a blood or urine test is a crime. A person presented with a search warrant for their blood or urine can choose between the two types of fluid tests. In other words, if an officer presents a search warrant to a person directing them to provide a sample of their blood, the person may object, at which time the officer must offer a urine test in the alternative, and vice versa. If a person refuses both types of testing, they may be charged with the crime of test refusal. The statutory advisory in the context of blood and urine testing does not include a requirement that an officer inform a person of their right to speak with an attorney before making a decision. On this topic, the statute is altogether silent.
State v. Rosenbush
In Rosenbush, the driver was arrested on suspicion of a DWI. She was transported by ambulance to a hospital so that officers could obtain a sample of her blood for DWI testing. While Rosenbush was being transported, the arresting deputy’s supervisor obtained a search warrant for a blood sample. After serving Rosenbush with the search warrant, the deputy read to her the Implied Consent advisory for blood and urine tests. The advisory informed Rosenbush that “refusal to submit to a blood or urine test is a crime,” but did not convey to Rosenbush that she had a right to speak with an attorney before making her decision. As mentioned above, that is not a component of the advisory for blood and urine tests. After being read the advisory, Rosenbush agreed to a blood test, and the test results yielded an alcohol concentration above the legal limit of .08. Rosenbush was charged with a DWI crime.
During the pretrial phase of the case, Rosenbush filed a motion to suppress the blood test, arguing that she had a right to speak with an attorney before deciding to take a test, and that her right was violated because the deputy did not vindicate that right. The district court agreed, and suppressed the blood test from evidence. The Minnesota Court of Appeals later reversed the district court, and Rosenbush then sought review at the Minnesota Supreme Court, which was granted. The Minnesota Supreme Court framed the issue before it as follows:
The issue before us is whether a driver arrested on suspicion of DWI, read an implied-consent advisory, and presented with a search warrant authorizing a search of her blood has the right to a reasonable opportunityh to obtain legal advice before deciding whether to submit to chemical testing under Artile I, Section 6 of the Minnesota Constitution.
The majority of the Minnesota Supreme Court set out to answer this question by first examining recent changes to DWI testing laws in Minnesota. Specifically, the court recognized that while the Implied Consent advisory and testing procedures for breath tests remained unchanged, the law on blood and urine tests changed dramatically, allowing the police to pursue those types of tests only by search warrant or a judicially-recognized exception to the search warrant requirement. In the court’s eyes, this signficantly changed the landscape. As stated by the court:
Further, the existence of a search warrant eliminates many of the concerns that led us to expand the right to counsel in Friedman. The Fourth Amendment protects personal privacy and dignity against unwarranted intrusion by the state by generally requiring that police obtain a search warrant before searching a person or place. And the presence of a search warrant ensures that drivers are not faced with the unchecked legal power of the state because a neutral and detached magistrate has been interposed. Therefore, when a suspected impaired driver is presented with a search warrant for a blood or urine test, the driver is not ‘meeting his adversary’ in the same manner as the driver in Friedman because a neutral judicial officer has determined that the police may lawfully obtain a sample of the driver’s blood.
…
In sum, the presence of a warrant ameliorates the concerns that we articulated in Friedman. We are confident that conducting a search pursuant to a lawful warrant adequately safeguards the human rights human dignity about which we were concerned in Friedman and supplies meaningful procedural protection for the rights of the criminally accused. Thus, we see no reason to extend the limited right to counsel announced in Friedman to the execution of a search warrant for a suspected impaired driver’s blood.
We hold that the limited right to counsel under the Minnesota Constitution recognized in Friedman does not apply when a driver is presented with the choice to submit—or not to submit—to a blood test pursuant to a search warrant. Accordingly, the district court erred in suppressing the blood-test results on that ground.
Interestingly, Rosenbush argued for the first time on appeal that the new advisory for blood and urine tests is unconsitutional on due process grounds because “it provides only a single crumb of information regarding a driver’s rights and obligations.” The Minnesota Supreme Court refused to consider this issue since it was raised during the appeal, and had not been raised in the district court or at the Minnesota Court of Appeals. Accordingly, there may be in the future a case similar to Rosenbush in which this specific issue is decided. At a minimum, the door is left open for future defendants to make this argument.
If there is one thing that may be said about Minnesota’s DWI laws, it is that they are constantly changing. From the laws on DWI testing to the constitutional issues surrounding the various forms of testing, Minnesota continues to mold the rights of citizens in the DWI field.
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Minneapolis DWI lawyers David R. Lundgren and Adam T. Johnson are eager to speak with you about your Minneapolis DWI case. You can contact them here or by calling (612) 767-9643.