PinThe Minnesota legislature is considering a new DWI/DUI driver’s license revocation law. Introduced by Senator Warren Limmer (R-Maple Grove) who is chair of the Senate Judiciary and Public Safety Finance and Policy Committee, Senate File 2375 would repeal Minnesota Statute Section 169A.51, subdivision 3 which delineates types of available blood alcohol content (BAC) tests for DWI suspects.

Following the US Supreme Court’s ruling in Birchfield v. North Dakota (2016), in which the Court held that warrants are necessary for blood and/or urine tests for DWI/DUI suspects under the US Constitution’s Fourth Amendment, the legislature is now seeking to pass legislation requiring law enforcement officers to first advise suspects of their right to counsel before performing a blood and/or urine test.

Current State Law

At the heart of the debate surrounding this issue is the risk of first-time DWI/DUI suspects refusing a court order for a blood/urine test without counsel input. Whereas a first-time simple DWI/DUI suspect is usually charged with a simple misdemeanor, refusal to comply with a court order is a gross misdemeanor with more serious consequences.

Senator Jerry Relph (R-St. Cloud) adds that in addition to these gross misdemeanor charges, DWI/DUI defendants could also be charged with contempt of court which carries even more severe criminal penalties.


Minnesota’s DWI Task Force Chair David Bernstein backs the bill but opposes the advisory because he feels it limits the severity of harsher DWI/DUI laws. He argues that the impetus for the law was to avoid situations in which defendants refuse court-ordered blood tests only to have their blood forcibly drawn later. This bill would enable the suspect to be charged with disobeying a court order for refusing to comply with a warrant for his/her blood (or urine).

Senator Ron Latz (DFL-St. Louis Park) asserts that court-ordered blood/urine tests are now on the same level as breath tests which are only administered with suspects’ compliance. DWI/DUI suspects may consult with counsel before submitting to a breath test, and Latz argues the same standard should apply to court-ordered blood/urine tests because if a suspect has the right to refuse then s/he should also have the right to counsel. However, Bernstein argues that the right to counsel does not apply to search warrants obtained during other criminal investigations and that creating a DWI/DUI exemption is improper.

Bernstein suggests that his task force would, in fact, support requiring law enforcement officers to advise DWI/DUI suspects that the blood/urine test is court-ordered and refusal to comply is a crime; however, he adamantly opposes suggestions of a formal advisory for officers to apprise suspects of their right to counsel because, he says, police officers should not bear the burden of any additional responsibility.

Criminal versus Civil Affirmative Defense

Another key provision of the bill changes Minnesota’s implied consent law regarding Schedule I and II controlled substances in DWI/DUI cases. Under the current law, if an individual charged drugged driving can prove s/he took the drug(s) in question pursuant to a legal prescription and said drug(s) did not directly impair his/her driving, then s/he may escape criminal conviction. However, as this defense is unavailable under civil driver’s license revocation law, some drivers may be criminally acquitted of DWI/DUI but still lose their license via civil administrative sanctions. Compounding the problem is that civil license revocations amount to “enhanceable entries” on one’s driving record, thus leading to potentially harsher penalties for future violations.

To address this disparity, Senator Scott Jensen (R-Chaska) introduced an amendment enabling the same affirmative defense in civil DWI/DUI cases, particularly for individuals who legitimately take certain medications that may show up in blood tests as being illicit.

A companion bill authored by Representative Tony Cornish (R-Vernon Center) was not discussed at this time.