Last month, the Minnesota Supreme Court ruled that motorists who are suspected of DWI are not constitutionally entitled to consult with an attorney if law enforcement has a search warrant for a blood sample.
The case, State v. Rosenbush, revolved around the defendant, Jennifer Rosenbush, who crashed her car into a ditch in Dakota County in July 2017. Following the accident, Rosenbush—who was suspected of being under the influence—was taken to a hospital where she was served with a search warrant ordering her blood to be taken and tested for intoxication.
At the time, the officer did not provide Rosenbush the opportunity to consult with an attorney.
Background of the case
Rosenbush’s blood alcohol concentration (BAC) was .113%–well above the legal limit in the state—and she was charged with misdemeanor 4th degree DWI. If she refused the test, however, she would have been charged with a gross misdemeanor.
Even if Rosenbush did, in fact, contact an attorney, her choices would have been exactly the same: either submit to the testing and receive a lesser charge or refuse and face a more serious one under the state’s implied consent law.
Rosenbush filed to suppress the test results, stating that she was denied access to counsel, and the district court agreed. The Court of Appeals overturned the decision, and the case made it to the state’s high court.
In a 4-3 decision, the State Supreme Court held that a motorist suspected of DWI is not constitutionally entitled to consult with an attorney prior to submitting to a search warrant for a blood sample because a search warrant is provided by a “neutral judicial officer [who] has determined that the police may lawfully obtain a sample of the driver’s blood.”
In prior cases, the Supreme Court has held that defendants have the right to legal counsel at critical prosecutorial stages including pretrial procedures, and that a request for BAC testing under the state’s implied consent law was, in fact, a critical stage. Thus, suspects do have a limited right to consult with an attorney at this stage.
However, this case is different in that police had a search warrant which is now required for blood or urine tests, and the majority held that the Minnesota Constitution has never provided the subject of a search warrant the right to consult with an attorney before a warrant can be executed. Quite simply, a search warrant for a driver’s blood sample is no different than a search warrant for potential evidence at a home or other property. If the court ordered a search—and provided a warrant—nobody has the right to refuse said search and potential seizure.
The three dissenting justices asserted that a motorist’s decision whether to submit to a chemical test and provide potentially incriminating evidence or refuse to submit and be subject to the state’s implied consent law is a decision that requires consulting with a neutral party, not a police officer. Thus, forcing the motorist to submit to the test in the warrant violated his/her constitutional rights. Justice Natalie Hudson stated that the mere presence of a search warrant does not simply alleviate concerns about the potential legal ramifications of deciding to submit or refusing to do so.
Of course, officers could provide DWI suspects the opportunity to contact a lawyer if they so desired, but the law doesn’t require it.