Minnesota DWI Lawyer David R. Lundgren details the changes made by the legislature to Minnesota’s DWI laws and offers his insight into a portion of the wide array of available DWI defenses, some new and some old.

Two of our previous articles (see here and here) detailed the long and overdue dismantling of Minnesota’s DWI laws by the appellate courts of our state. In response to the judicial scrutiny and invalidation of significant portions of the DWI statute, the Minnesota legislature passed House File Number 179 during the 2017 Regular Session.

So what did the law change in practical terms, and how does it impact the defenses a Minnesota DWI Lawyer will utilize on the behalf of people accused of DWI?

No More DWI Blood or Urine Tests Without A Search Warrant…

Minnesota law now states, “a blood or urine test may be conducted only pursuant to a search warrant under sections 626.04 to 626.18, or a judicially recognized exception to the search warrant requirement.” In plain English this means that in order for an officer to request a blood or urine sample from a drunk driving suspect, they must first obtain a warrant unless one of the exceptions to the warrant requirement accepted by our courts applies. Practically it means that a Minnesota DWI lawyer now has several more tools in his or her arsenal to challenge the evidence obtained during a DWI investigation. But more on that part later. First, a brief discussion about search warrant exceptions.

…Or Applicable Search Warrant Exception

The exceptions to the search warrant requirement established by the United States and Minnesota constitutions are many, but apply in very specific circumstances only and receive intense scrutiny by judges when assessing whether they apply in a particular case. Although the law surrounding search warrant exceptions can, and does, fill law libraries, this article will briefly provide a birds eye view of the most relevant in the DWI context. Although some scholars point to over 20 search warrant exceptions, 7 of them are most common and garner the most attention in our criminal justice system:

Consent: Lawful and voluntary consent to a search;
Search Incident to Arrest: A search conducted for evidence in the immediate vicinity of a lawful arrest;
Plain View: The plain view discovery of contraband from a place where law enforcement had lawful access;
Stop and Frisk: Principle articulated in the United States Supreme Court’s opinion in Terry v. Ohio when there is reasonable suspicion or a concern for officer safety;
Automobile Exception: Law enforcement can search a vehicle when there is probable cause to believe there is evidence of a crime therein due to a diminished expectation of privacy in, and inherent mobility of, motor vehicles;
Hot Pursuit: Law enforcement can search the areas a fleeing suspect may hide when a crime is committed in their presence and they are attempting to apprehend the suspect; and
Exigent Circumstances: Law enforcement may conduct a search when necessary to preserve public safety, property of others, or to prevent the destruction of evidence.

Of the seven exceptions detailed above, two are most pertinent and analyzed in DWI cases: Consent and Exigent Circumstances.

Consent Exception to DWI Search Warrant for Blood or Urine

With regard to the consent exception, notions of “Implied Consent” are no longer viable in justifying warrantless searches in impaired driving investigations. Likewise, the State cannot threaten to impose criminal sanctions it otherwise could not impose to extract someone’s consent from them. And, the question of whether an officer must provide a driver the opportunity to speak with counsel, even when requesting a test outside of Minnesota’s Implied Consent statutory scheme that carries various civil penalties, is currently under review by the Minnesota Supreme Court in State v. Hunn, 899 N.W.2d 541 (Minn. Ct. App. 2017), review granted in part on Sept. 19, 2017. Look for further information from our blog once the Court issues its opinion on this particular issue. As any good Minnesota DWI Lawyer should, the lawyers at Lundgren & Johnson remain abreast of all the latest DWI laws and legal jurisprudence so we can utilize it to our client’s advantage. The Hunn matter is still in the briefing stage and oral argument has yet to be scheduled as of the date of this article. A decision can be expect sometime this summer or early fall.

So how does a court decide whether someone has actually consented to a search, or whether their purported “consent” was lawfully obtained? For a search to fall under the consent exception, the State must show by a preponderance of the evidence that consent was given freely and voluntarily. Whether consent was voluntary is determined by examining the totality of the circumstances, including:

The nature of the DWI encounter;
The kind of person the drunk driving suspect is;
The time of day at which consent was supposedly obtained;
Whether the DWI suspect was subject to persistent police questioning;
What was said and how it was said;
The manner of questioning by the officers, evaluating whether the officers acted in a threatening way or in any way other than professionally; and
Whether the impaired driving suspect’s answers were equivocal.

The question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact for the court to determine utilizing the factors described above. Consent is not involuntary merely because the circumstances of the encounter are uncomfortable for the person being questioned. But when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, the Fourth Amendment intervenes. Failure to object is not the same as consent. Nor is mere “acquiescence to a claim of lawful authority” enough to establish consent.

Exigent Circumstances Exception to DWI Search Warrant for Blood or Urine

Minnesota Courts previously held that the natural dissipation of a suspect’s blood alcohol concentration due to the passage of time alone constituted a sufficient exigency (emergency) to dispose of the search warrant requirement in DWI cases. However, the Supreme Court of the United States opinions in McNeely, Birchfield, Beylund, and Bernard left no question that the dissipation of alcohol alone was not a sufficient basis to excuse officers from obtaining a search warrant for a suspect’s blood or urine. Instead, the State is required to prove the existence of an emergency (or other exception, like consent) to admit such evidence in the absence of a warrant.

Exigent circumstances may exist when there is a compelling need for official action and no time to secure a warrant. In determining whether exigent circumstances exist, courts will objectively evaluate the totality of the circumstances, much like in the consent exception above. Relevant factors in determining whether a warrantless search is subject to the exigent circumstances exception will vary depending on the factual circumstance of each particular case.

Courts are also mindful of the practical problems of obtaining a warrant within a time frame that still preserves the opportunity to obtain reliable evidence. This concern has largely been mitigated, though, because most law enforcement officers are able to submit search warrants electronically from their squad’s computers. The Minnesota DWI Lawyers at Lundgren & Johnson have seen, and successfully challenged in court, electronic warrants that were secured by law enforcement within a matter of 15 minutes or less.

Time needed to secure a warrant is an important factor when analyzing exigent circumstances exception.

It’s not only important for a Minnesota DWI Lawyer to know the factors taken into consideration by Minnesota courts, but they must also know how to establish a factual basis to support the reality that many officers can apply for a warrant within minutes, rather than hours, if they desired.

The Minnesota Supreme Court has had an opportunity to analyze the exigent circumstances exception to the search warrant requirement for DWI cases post-McNeely. The Court found the following circumstances relevant to its inquiry and ultimate determination:

Law enforcement had reason to believe that the DWI suspect was intoxicated at the time of the accident;
The DWI suspect sustained serious injuries that necessitated emergency treatment;
Necessity of medical treatment rendered the future availability of a blood draw uncertain;
The officer did not know how long the DWI suspect would remain at the same hospital or whether further medical care would preclude obtaining a sample;
The possibility that the DWI suspect might be transported to a different hospital; and
Importance of drawing the DWI suspect’s blood within the statutory two-hour period.

The Court also noted that another relevant consideration is whether the time necessary to bring the DWI suspect to the hospital, or for the officer to travel to the hospital, impacted the officer’s ability to obtain a warrant before the blood draw without significantly undermining the efficacy of the search.

These factors will vary from case to case, and there will be other factors not discussed that are pertinent in some cases, but not others. In short, it is a highly factual inquiry. Highly factual inquiries favor the creative and prepared lawyer over the one who sees every DWI case as just another run-of-the-mill case.

It is important for your Minnesota DWI Lawyer to understand the reasoning and underlying rationale behind the exigent circumstances exception – and every other legal and factual issue applicable to DWI’s – in order to give you the best opportunity for a successful defense. At Lundgren & Johnson, we consider each case on an individual basis and offer tailored defenses to our client’s circumstances. Our dedication to staying on the leading edge of DWI laws, attention to detail, and meticulous preparation for each of our cases serve our clients well.

DWI Search Warrants and Test Refusals

The changes to Minnesota law do not affect the test refusal laws with regard to breath tests. The law still remains, and will remain, that a DWI suspect’s refusal of a lawfully requested breath test is a crime, and in most instances, a more serious crime. But what happens when law enforcement obtains a warrant for a blood or urine test and the suspect still refuses? Will law enforcement force a needle into that person’s arm?

Minnesota Statute Section 169A.52, subdivision 1, still requires that, “if a person refuses to permit a test, then a test must not be given…”. However, the DWI suspect will then be charged with the more serious crime of refusal. It’s important to note that this limitation on pursuing a test after refusal does not apply when the officer has probable cause to believe that a criminal vehicular homicide or operation offense has taken place. It also still remains true that action may be taken against a DWI suspect who refuses to take a blood test only if a urine test was offered, and vice versa. See Minnesota Statute Section 169A.51, subdivision 4.

Timing of Implied Consent Petition

Our previous article Getting Back on The Road: Seven Essential Steps to Take Immediately After Your Twin Cities DWI explained the necessity and importance of filing an implied consent petition in district court after being arrested for DWI. If you have questions about what an implied consent petition is or why it’s important to file one, please refer to that article and call a Minnesota DWI Lawyer.

The 2016 amendments to Minnesota’s DWI statute now allows a driver up to 60 days from the date of revocation to file his or her implied consent petition, as opposed to 30 days under the old law.

Drivers now have 60 days from revocation to file an Implied Consent Petition.

The extended filing deadline has the practical effect of not only doubling the amount of time a driver has to challenge their license revocation, but it will also likely allow them to have a meaningful opportunity to consult with an attorney about the importance of filing the petition. One of the driving forces behind this particular change in the law was that most driver’s overlook the license revocation portion of a DWI and wait for their first criminal court appearance before consulting with a lawyer. But, most first appearances in criminal court for first time DWI defendants happen well outside of the 30 day time period. The Minnesota criminal defense bar lobbied for some time to request this extension to the filing deadline – and the legislature acknowledged that fairness and due process dictates a longer filing deadline.

Not only do traditional DWI defenses remain with the changes in the law, but the new legislation also provides an opportunity for a savvy Minnesota DWI Lawyer to make additional challenges to the prosecutor’s case against a DWI suspect. If you have spoken with a Minnesota DWI Lawyer that has not at least thought about the defenses below (and more), you should consider seeking a second opinion.

Insights into DWI Defense from a Minnesota DWI Lawyer

Below is a non-exhaustive list of factual and legal issues a Minnesota DWI Lawyer should consider when representing a driver accused of DWI:

Whether the chemical test was obtained within two hours of the suspected driving or operation of the motor vehicle;
Whether the State can establish that the driver had physical control of the motor vehicle;
In the case of a breath test, whether the uncertainty of measurement of the DataMaster breath test machine ranges below .08 BrAC or .16 BrAC;
Whether the officer satisfactorily conducted an observation period prior to testing, whether the officer is properly trained in conducting an observation period, and whether the officer knows the purpose of conducting an observation period;
Whether the officer had a lawful basis in stopping the driver’s motor vehicle;
Whether the officer had a lawful basis in expanding the scope of the traffic stop into a DWI investigation;
Whether the officer had probable cause that a DWI had been committed prior to making an arrest;
Whether the officer is properly trained and properly conducted the standardized field sobriety tests (which are subject to a manual of over 100 pages published by the National Highway Traffic Safety Administration);
Whether the driver has any medical conditions that may artificially increases their blood alcohol concentration;
In the case of a urine or blood test conducted pursuant to a warrant, whether the officer’s warrant application included sufficient facts to establish probable cause for a search;
In the case of a urine or blood test conducted pursuant to a warrant, whether the officer’s execution of the warrant was in accordance with the warrant and statutory requirements;
Whether the driver was afforded an opportunity to speak with a lawyer prior to making his or her decision about testing;
Whether the officer properly advised the drunk driving suspect of his rights under Minnesota law prior to testing;
If no warrant was obtained, but a urine or blood test was taken, whether the State will be able to prove a valid exception applied;
In the case of a breath test, whether the DataMaster machine was properly calibrated and maintained;
In the case of a refusal, whether it was reasonable under the circumstances;
In the case of a urine or blood refusal, whether both tests were offered;
Whether the blood alcohol concentration occurred from post-driving consumption of alcohol;
Whether the driver was involuntarily intoxicated due to a spiked drink;
Whether a controlled substance detected by a blood or urine test was taken in accordance with a valid prescription; and
Whether a legally recognized necessity to drive can be proven.

Again, the non-exhaustive list above are issues a Minnesota DWI Lawyer should consider, at the least, when representing a DWI defendant. Justice is best reached when there is a full understanding of not just the plain language of the law, but the underlying reasons for it. That knowledge allows a lawyer to effectively apply the law to the specific factual circumstances each case brings, and ensures that the proper result is reached.

We take DWI cases seriously at Lundgren & Johnson. Convictions and license revocations have a long and lasting impact. We strive to achieve justice for our clients and do everything we can in that regard. If you or a loved one is facing a DWI, please do not hesitate to contact a Minnesota DWI Lawyer from Lundgren & Johnson for a free consultation. We’re located in Minneapolis, Minnesota, but handle cases in the farthest reaches of our state. You can call us at 612-767-9643 or leave us an electronic message below and one of our attorneys will contact you shortly.

Minnesota DWI Lawyer: Insights and Updates