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From the bench: Search warrants for blood alcohol tests

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"Judge, is it true that all drunk driving convictions are now invalid?"

I was recently asked this question, which was prompted by a recent decision of the United States Supreme Court that got media attention.

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In State of Missouri v. McNeely, the Supreme Court decided last April that the Fourth Amendment to the U.S. Constitution requires that, in the absence of "exigent circumstances," a search warrant be obtained to authorize the drawing of a blood sample from an impaired driving (DWI) suspect who has refused to take such a test. The sample is usually drawn as possible evidence of blood alcohol content (BAC) in a DWI prosecution.

This actually is not a new legal development. In Schmerber v. California, decided in 1966, the U.S. Supreme Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because of a reasonable belief by the law enforcement officer that any delay to get a search warrant would have resulted in the loss or destruction of evidence.

The Schmerber case created an "exigent circumstance," an emergency exemption to the Fourth Amendment requirement that the law enforcement authorities obtain a search warrant in the face of someone refusing to allow the search.

This exception to the Fourth Amendment got expanded over the years to the point where some states were claiming that no search warrant was necessary for law enforcement to obtain a blood alcohol test from a DWI suspect.

In fact, the state of Missouri argued in the McNeely case that since alcohol dissipates quickly in the blood system, there is too little time for a law enforcement officer to get a search warrant to collect a BAC sample from a DWI suspect, and all blood BAC tests should be exempted from the search warrant process.

The U.S. Supreme Court found that the lack of time or some other emergency might excuse the need in some situations to get a search warrant, but not all.

In McNeely, the record showed that the police had ample time to call a judge to get a search warrant prior to the end of a two-hour test window for DWI charges. However, the police did not take any steps to get a search warrant after the driver refused the blood test.

The Supreme Court ultimately decided in McNeely that since the police had enough time in that specific instance to obtain a search warrant from a judge, the warrantless BAC test was illegally obtained in violation of the Fourth Amendment. That made the test results inadmissible as evidence in the subsequent prosecution of the driver for a DWI violation.

The U.S. Supreme Court recently sent a Minnesota case back to the state courts for reconsideration in light of the McNeely decision.

Minnesota makes it a crime for a driver to refuse to submit to a chemical test for blood alcohol content. The U.S. Supreme Court has given a strong signal that such a law may be unconstitutional in that it puts undue duress on a person in forcing them to give up a constitutionally protected right (a search warrant) under the threat of being charged with a crime.

The issue thus arises as to whether warrantless blood, breath, or urine BAC tests taken from defendant-drivers were legally obtained. This is important to the admissibility of the BAC test results as evidence in a DWI prosecution.

The Minnesota Supreme Court has scheduled oral arguments in mid-September for the case in question, State v. Brooks. In the meantime, many hundreds of DWI cases are backing up on our busy state court calendars, awaiting the outcome of the Minnesota Supreme Court's decision in Brooks. At last count, I had 45 such cases on my docket.

While constitutional issues and potential changes may be swirling around the DWI laws of Minnesota, one principle of law remains very clear: it is still illegal to be driving under the influence of alcohol, drugs, or other substances in Minnesota. That will not change.

By Frank Kundrat, District Court Judge

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