United States vs. McNeely: Analysis and Implications for DWI Enforcement in Minnesota 1

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1 United States vs. McNeely: Analysis and Implications for DWI Enforcement in Minnesota 1 By Peter Ivy and Peter Orput, MCPA Co-Counsel 2 1) McNeely Background and Supreme Court Holding On April 17, 2013, the United States Supreme Court issued its notable decision of Missouri v. McNeely which involved a forced, nonconsensual blood test during a DWI arrest. In McNeely, officers read the Missouri implied consent advisory to McNeely after seeing him speeding and crossing the centerline. McNeely was suspected of driving under the influence. But McNeely refused to take any chemical test to determine alcohol concentration. Because of the refusal, Missouri law enforcement officials did not attempt to obtain a search warrant but instead directed a laboratory technician to obtain an involuntary blood draw to test for blood alcohol concentration (test refusal is not a crime in Missouri). McNeely tested well above the legal limit. McNeely moved to suppress this evidentiary blood test, arguing the warrantless physical search by the police violated his Fourth Amendment rights. Ultimately, the Missouri Supreme Court upheld the legality of McNeely s warrantless, involuntary test under the single exigent factor that alcohol rapidly dissipates and, therefore, there was not enough time to obtain a judicially authorized search warrant. The Missouri Courts rested its decision on the 1966 United States Supreme Court case of Schmerber v. California which held that the state may, even over the suspect driver s objection, have qualified medical personnel in a clinical setting extract blood from a person suspected of drunken driving without violating the suspect's rights under the Fourth or Fifth Amendment of the United States Constitution. 3 1 DISCLAIMER: This article contains the legal opinions and suggestions of the authors. Until the Minnesota Supreme Court authoritatively rules on the issues herein, the Minnesota implied consent law and the constitutionality of test refusal remains unsettled. Hence, law enforcement agencies are encouraged to exercise due diligence and consult with their local prosecutorial authority for specific policy advice in processing their local DWI cases. 2 Mr. Orput is the Washington County Attorney. Mr. Ivy is the Chief Deputy Carver County Attorney. 3 Schmerber v. California, 384 U. S. 757 (1966). Schmerber was hospitalized following a traffic crash. An investigating law enforcement officer smelled alcohol on his Schmerber s breath and noticed other symptoms of intoxication. The investigating officer placed Schmerber under arrest and read him the Miranda warning. Although Schmerber objected, a physician took a blood sample from Schmerber at the officer s direction. The resulting

2 In reversing the Missouri Supreme Court, the U.S. Supreme Court held that the rapid dissipation of alcohol by itself is not sufficient for the exigent circumstance exception, particularly where such a blood draw involves the compelled insertion of a needle through a person s skin which involves a person s "most personal and deeprooted expectations of privacy." Rather, in order to obtain a warrantless blood draw, the exigent circumstance exception to the search warrant requirement must be decided upon the totality of the circumstances and not simply upon the single exigent factor that alcohol dissipates rapidly in the blood. While the rapid dissipation of alcohol still remains an important factor in this totality of the circumstances analysis, the U.S. Supreme Court also emphasized law enforcement must now demonstrate why it was not feasible to obtain a search warrant under the circumstances of each particular case. The U. S. Supreme Court in McNeely also noted vast advancements in communications technology since the 1966 Schmerber case, including and teleconferencing. Moreover, evidence to establish probable cause in DWI investigations is a relatively simple proposition. In light of these substantive technological developments and simplified search warrant templates, the U. S. Supreme Court held that Missouri law enforcement should have and could have applied for a search warrant before seeking a non-consensual blood draw. 4 McNeely does not overrule Schmerber but McNeely does place the onus on the state to show why under the facts of any given case, it is such an emergency situation that there is no time to get a search warrant, particularly with technological advances. The single factor of rapidly dissipating alcohol alone will no longer meet this standard. blood test, which indicated intoxication, was admitted in evidence over objection at Schmerber's trial for driving while intoxicated. He was convicted and the conviction was affirmed by the U. S. Supreme Court which rejected his claims of denial of due process, of his privilege against self-incrimination, of his right to counsel, and of his right not to be subjected to unreasonable searches and seizures under the Fourth Amendment. Importantly, to this Fourth Amendment issue, the U. S. Supreme Court held the investigating officer reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened "the destruction of evidence since the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. 4 Minnesota Rule of Criminal Procedure 36 details the requirements for telephonic search warrants. Note that telephonic warrants require a complete recording of the conversation with the judge and the preparation of a transcript of that conversation. The process of obtaining a telephonic warrant is more cumbersome than a law enforcement officer presenting the search warrant to the judge in person. Frankly, Rule 36 is archaic and needs a technological update so that officers could use software such as Skype to converse with the judge. See, Minnesota Department of Administration Advisory Opinion (City complies with Minnesota Statutes, section 13D.02, when it holds a meeting at which a city council member attended via Skype from a remote location).

3 At its essence, McNeely holds that exigent circumstances in warrantless DWI cases will be adjudicated on a case-by-case basis and on the totality of circumstances. 2) McNeely s impact on Minnesota Case Law. Unlike Missouri, because Minnesota has criminalized implied consent test refusal to be a crime, Minnesota law enforcement has no history of attempting a warrantless, nonconsensual blood draw in the ordinary DWI case not involving some level of Criminal Vehicular Operation. On the other hand, McNeely overrules the Minnesota case of State v. Shriner 5 because Shriner held that dissipation of alcohol in a defendant's blood, standing alone, constitutes an exigent circumstance that will justify police officers taking a warrantless, nonconsensual blood draw from the defendant in a criminal vehicular homicide case. In 2009, Minnesota s State v. Netland decision upheld the constitutionality of Minnesota s criminal refusal law. 6 McNeely does not directly overrule Netland but McNeely does call into question Netland s premise that criminal refusal can be based solely on the exigent circumstance of dissipating alcohol. McNeely did not address the consent exception to the search warrant requirement. As law enforcement knows, valid consent is a long recognized exception to search warrant requirement. Minnesota s criminalization of test refusal is based on the exigency of rapid alcohol dissipation. But McNeely holds that rapid dissipation of alcohol no longer stands as an emergency exigency justifying a warrantless blood draw. Hence, defense attorneys will now argue the refusal provision of Minnesota Implied Consent Advisory is no longer constitutional because this refusal provision no longer has a sound legal basis as a result of McNeely. Since refusal applies not only to blood but breath and urine as well, defense attorneys will argue that search warrants are now required in all DWI s and that the onus should be on law enforcement officers to show, under the totality of the circumstances, they did not have the time or resources to obtain a search warrant. 7 These arguments will be addressed sometime in 2013 in three consolidated cases now 5 State v. Shriner, 751 N.W.2d 538 (Minn. 2008). 6 State v. Netland, 762 N.W.2d 202 (Minn. 2009); Minn. Stat. 169A.50-54; see also, State v. Wiseman, 816 N.W.2d 698 (Minn. App. 2012) cert denied, 133 S. Ct (U.S. 2013) (A warrantless chemical test is constitutionally reasonable if the police have probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle while chemically impaired because of the exigent circumstances created by [t]he rapid, natural dissipation of alcohol in the blood. Although the United States Supreme Court denied review of Wiseman, its validity remains in question after McNeely). 7 Minnesota is one of the few states that criminalizes refusal. Most states simply allow evidence of refusal into the DWI trial (and provide for longer license revocations where driver refuses test).

4 before the Minnesota Supreme Court in State v. Brooks. 8 Nevertheless, the Minnesota implied consent law remains constitutional at this point in time. Some defense attorneys also claim that law enforcement can invariably obtain search warrants in less than an hour. Perhaps so, but at what cost? The idea that law enforcement would need to obtain search warrants for every breath and urine test in the standard variety DWI will be patently detrimental to patrol coverage and response times. With shorter patrol coverage and longer response times, public safety will be adversely impacted. While every jurisdiction is free to follow its own policy, here are some suggestions for your consideration until the Brooks case is decided on these important constitutional questions: A) CRIMINAL VEHICULAR OPERATION CASE (CVO). In the event of a suspected Criminal Vehicular Operation (CVO) involving serious injury or death, law enforcement should not read the implied consent and ask for consent, but rather devote that agency s resources necessary to secure a warrant or otherwise thoroughly document a plausible explanation why that warrant could not be obtained within a reasonable time. 9 Particularly in urbanized areas of Minnesota, law enforcement should anticipate that failure to obtain a judicially authorized search warrant in the CVO context will be highly scrutinized by Minnesota courts because of the McNeely decision. A search warrant is highly advisable in the CVO context because blood test results may be suppressed if law enforcement has not adequately documented exigent circumstances under the totality of circumstances justifying that agencies failure to obtain a warrant. The warrant sought may be a telephonic warrant as allowed by the Minnesota Rules of Criminal Procedure. Particularly in greater Minnesota, it may be difficult to obtain a search warrant within a reasonable time under the totality of the circumstances. Where a warrant cannot be obtained it will be incumbent upon the agency to shoulder the burden of demonstrating: travel times and distances involved, attendant needs at crash site, availability of officers, detailed chronological timeline, availability of on-call judge, actual efforts expended in trying to obtain a search warrant or telephonic search warrant, dispatch and operational logs indicating all other contemporaneous calls for service, arrests, investigation, medical treatments and procedures. Be sure to include detailed information, if applicable, that obtaining 8 State v. Brooks, 2012 WL (Minn. App., May 7, 2013). On April 22, 2013, the United States Supreme Court vacated Minnesota Court of Appeals judgment in Brooks and remanded the case back to the Minnesota Supreme Court further consideration in light of McNeely (Supreme Court Docket No ). 9 Because the implied consent advisory is not read, defendant has no right to counsel since the driver is not being asked for consent to test. State v. Condon, 497 N.W.2d 297 (Minn. App. 1993).

5 a search warrant under the particular circumstances would have hampered other important law enforcement activities. Do not simply state generalizations in police reports, rather be specific to the actual circumstances of the incident as listed above. If after all this, a search warrant cannot be obtained, the agency may require a non-consensual blood draw from the driver in a suitable clinical setting. Because the implied consent advisory is not read in these situations, the prosecutor should be sure that a certified copy of the criminal complaint should be sent to DPS Driver & Vehicle Services (DVS) for appropriate and immediate administrative action (suspension of driving privileges). B) UNCONSCIOUS DRIVER CASE. McNeely did not invalidate that portion of Minnesota implied consent law which provides that a blood sample can be withdrawn from a driver who is unconscious or in a condition rendering him incapable of refusal without obtaining a search warrant. 10 C) STANDARD DWI CASE. In cases involving alcohol, read the Minnesota Implied Consent Advisory and offer only breath or urine tests. In cases of controlled substances, read the Minnesota Implied Consent Advisory and offer urine first, then blood. 11 Because of the pending litigation, it is clearly preferable if the officer can obtain consent to test rather than charge refusal. In the event Brooks does overrule Netland, then blood, breath or urine tests may be suppressed and therefore not admissible at trial. Therefore, in all standard DWI s law enforcement needs to be especially diligent in preparing and documenting all circumstances of the DWI arrest. If tests are ultimately suppressed, law enforcement can expect more DWI trials. 10 Minn. Stat. 169A.51, subd. 6; Breithaupt v. Abram, 352 U.S. 432 (1957). 11 The officer may decide the type of test, but if urine or blood is refused then another test must be offered. Minn. Stat. 169A.51, subd. 3.