In State v. Brooks, the Minnesota Supreme Court recently decided the most hotly contested issue in DWI cases across the state. The main issue before the Court was whether an officer needs to obtain a search warrant to obtain a sample of a driver’s blood or urine in DWI cases; and if a warrant is required, then does an exception to the warrant requirement apply.
First, the Court decided that taking a blood or urine sample from someone is a search under the Fourth Amendment. Warrantless searches are per se unreasonable unless an exception to the warrant requirement applies. Thus, it was the state’s burden to proven a warrant exception applied in this case. In its argument, the state threw as many exceptions as they could at the Court, including consent, exigency, search incident to lawful arrest, independent reasonableness of the searches, and the good faith exception. Unfortunately, to the chagrin of defense attorneys and legal scholars, the Court decided that Brooks validly consented to the tests.
To be valid, consent must be free and voluntary. In Minnesota DWI cases, and in Brooks, officers read the Minnesota Implied Consent Advisory (ICA) to drivers they believe to be impaired. In part, the ICA states that Minnesota law requires the driver to take a test and refusing to take a test is a crime. The reading of the ICA often takes place while a driver is under arrest in the back of a squad car or when they are transported to the police station. But, Chief Justice Gildea’s majority opinion stated that it did not matter that Brooks was under arrest for the issue of consent, because he was neither subjected to repeated interrogation by officers nor did he spend days in custody before being confronted with testing. Basically, officers can coerce drivers into taking a test if it does not cross the line to cruelty.
Additionally, the majority opinion made a distinction that Brooks had an opportunity to speak with an attorney, and did so, before deciding to take the test. This “counseled consent” supported the majority’s reasoning that Brooks’s consent was voluntary, because attorneys are objective advisors who can explain choices to drivers. Here is the root of the issue that the majority rejects; drivers do not have a choice when deciding to test and attorneys are not really in a position to tell them what to do, but rather can explain the consequences. It is a crime to refuse to submit to testing, and in most situations it can be a more serious crime if a driver refuses to test than if they test and fail.
Accurately, Justice Stras’s concurring opinion in Brooks evaluates consent by citing Prideaux v. State. In Prideaux, the Court noted that the purpose of the implied-consent law is to coerce drivers into testing. At the time of Prideaux, it was not a crime for a driver to refuse to take a test, and because now it is a crime to refuse, Justice Stras noted that Minnesota’s implied-consent law is even more coercive. Justice Stras does not believe that a driver can never voluntarily consent to a test in Minnesota, but he could not approve the majority’s constitutional analysis of consent. Justice Stras reached the same judgment as the majority, but he believed the good-faith exception applies, because the deterrence of police conduct in this case is low. Justice Stras reasoned that it was not law enforcement’s fault that the Court decided Netland wrongly.
Even though Minnesota has yet to adopt the good-faith exception, Justice Stras believes it is appropriate, in part, because the United States Supreme Court has adopted this exception in Leon. Justice Stras likely believed that the good-faith exception had a better chance of being upheld by the United States Supreme Court than the majority’s finding of consent.
So, what happens in DWI cases now? The crime of refusal in Minnesota is still under attack. Whether a driver gives voluntary consent can still be litigated in every case where someone says “yes” I will take a test, because Brooks holds whether a driver consents is determined by the totality of the circumstances. Because Brooks states that implied consent is not enough, can officers still draw blood samples from drivers who are unconscious? The most unfortunate thing about Brooks, is the Court likely created more questions than it answered.
Robert H. Ambrose is an Associate Attorney for the Kans Law Firm in Minnesota. He practices in the areas of criminal defense and DWI litigation.