by Chris Rogers

Following a recent U.S. Supreme Court decision, judges in Winona County and across the nation may get less sleep, and defense attorneys in driving while intoxicated (DWI) cases may have a new line of defense against mandatory tests of blood alcohol levels. Local law enforcement is now seeking warrants for blood tests in certain drunk driving cases after the U.S. Supreme court case McNeely v. Missouri. In the April 17 decision, the court held that, with certain exceptions, police officers need to get a warrant to conduct a blood test for blood alcohol content. Minnesota defense attorneys say that the state's test refusal law, which makes it a gross misdemeanor to refuse a blood alcohol test, could be found unconstitutional following the McNeely ruling.

Currently, under Minnesota law, anyone operating a motor vehicle in the state gives implied consent to provide blood, urine, and breath tests. Refusing a test is a gross misdemeanor — an offense worse than a first-time DWI conviction.

Writing for law blog mndwidefense.com, attorney Dan Koewler says "there is a good chance that Minnesota's test refusal law is no longer constitutional and will have to be discarded." He adds that his law firm has "been positioning our clients cases for months in anticipation of this decision and we plan to take full advantage of this fundamental change in the case law to benefit our clients."

"I think that's a very strong possibility," Winona defense attorney Kurt Knuesel said of Minnesota's test refusal laws being thrown out. "There's certainly an argument to make that the threat of prosecution creates a situation that compels people to consent to a search, whereas before [McNeely] that wasn't as big of an issue, because the exigency of circumstances holding allowed for that search anyway. Now I think it's going to become more of an issue," he explained.

Knuesel said that he, too, is working to position his cases in the face of the judicial shift. He is filing motions to have his DWI cases suspended until after Minnesota Courts decide how to handle McNeely and a similar case before them.

Not everybody thinks McNeely will change Minnesota law. "I’ve always said the the test refusal statutes are unfair and unconstitutional," stated Winona defense attorney Mark Merchlewitz. However, "I don’t think [McNeely] is going to change much," he added.

Law enforcement and prosecutors are making at least one change so far. Last month the Winona County Attorney Office prepared a training presentation for local law enforcement officers about changes they should make in light of McNeely. Local officers were advised to try to obtain warrants for blood tests in cases of criminal vehicular operation or vehicular homicide that involve suspected drunk drivers. Currently, state law allows for testing against subjects' will in such situations. Following McNeely, if area law enforcement suspects a drunk driver caused a late-night accident that injured others, officers are supposed to try to wake up one of the county judges to sign a warrant authorizing a blood test. Law enforcement will continue with "business as usual" when it comes to most DWI arrests, as Winona Police Chief Paul Bostrack put it.

Pre-prepared forms provided by the county attorney's office will help streamline the warrant process. The U.S. Supreme Court mentions the potential for electronic communication to hasten the warrant process as well, but in Winona County, for now, such a system is just talk, said Winona County Sheriff's Office Chief Deputy Ron Ganrude.

When asked if seeking a warrant in connection to drunk driving investigation involving injuries made thing harder for police, Bostrack said, "It can throw up some road blocks, but those types of accidents are infrequent. It will take extra staff time — even with a standard DWI there's quite a few hours of paperwork — but there is a smaller number of criminal vehicular operation cases, which is good."

McNeely 101

The Fourth Amendment to the U.S. Constitution protects U.S. citizens from "unreasonable searches and seizures." Law enforcement officers are only allowed to conduct searches with a warrant from a judge or if there are "exigent circumstances," such as the imminent destruction of evidence. In McNeely, the State of Missouri argued that the dissipation of alcohol from the bloodstream of drunk driving suspects is in and of itself an exigent circumstance. Last month the U.S. Supreme Court ruled that is not the case for blood draws. Blood tests invade citizens' privacy, the court found. "Any compelled intrusion into the human body implicates significant, constitutionally-protected privacy interests," wrote Justice Maria Sotomayor, delivering the court's opinion.

When officers are able to, they need to obtain a warrant to conduct blood tests, the court decided. However, various circumstances in combination with dissipating blood alcohol levels can justify an unwarranted blood draw. What those circumstances are has to be decided on a case-by-case basis, the court held, but an unwarranted search may be justified if a judge is unavailable or if officers have to spend time transporting injured victims to the hospital before they can begin seeking a warrant.

Full impact to be determined

Minnesota and Wisconsin courts still have yet to decide how they will interpret McNeely. But if the disparity between the analyses of certain prosecutors and defense attorneys is any guide, there are many legal battles over the meaning of McNeely ahead.

One deciding factor in those battles will be how Minnesota Courts rule in Brooks v. Minnesota, another DWI case, involving a urine test, that was before the U.S. Supreme Court, but sent back to Minnesota appellate courts for reconsideration following McNeely. "There's a distinction that can be made between blood draw and urine or breath tests, but the remand of Brooks seems to suggest that urine sample is also search much akin to the blood test in McNeely," Knuesel said.

It might be wishful thinking on the part of defense attorneys and it would certainly be a step beyond the McNeely decision, but a ruling in Brooks could require warrants for urine and breath tests.

Ultimately, "the impact has yet to be determined. We need to know more about what's going to happen with state courts," Knuesel said.

"It is too early to tell if and how the McNeely decision will affect anything other than warrantless blood draws," Winona County Attorney Karin Sonneman told the Winona Post. She continued, "Previously, the challenge to the implied consent laws in that they are coercive was not addressed because the search was justified by the single-factor exigency of the dissipation of alcohol. Now, the courts will most likely have to address this challenge."