IMPLIED CONSENT LAW UPDATE

Cory Monnens, Assistant Attorney General

What Will Be Covered

Constitutional Caselaw Developments Uncertainty of Measurement in Breath Tests 171.19 Petitions Time for Questions

Constitutionality of Minnesota’s Test Refusal Statute

Refusal Statute… Constitutional or Unconstitutional?

As of June 23, 2016, the answer is a resounding, unequivocal—

“Yes!”

Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016)

One opinion addressing three cases Birchfield v. North Dakota: criminalized refusal of a

blood test Beylund v. Levi: license revoked based on driver’s

consent to a blood test State v. Bernard: criminalized refusal of a breath test

Holdings

“Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.”

“We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.”

Questions Unanswered by Birchfield

Status of urine tests? No mention of urine, only blood and breath

What about when a driver consents to a blood test? Remanded the blood consent case (Beylund) back to ND Don’t forget about State v. Brooks

Does it apply in a civil license revocation proceeding? Footnote 9

And earlier this year…

State v. Trahan, 870 N.W.2d 396 (Minn. Ct. App. 2015) Released October 13, 2015: refusal of blood test Court first addressed “whether a warrantless blood test

would have been reasonable under the Fourth Amendment.” Court addressed two warrant exceptions: search incident to

arrest, and exigent circumstances. Search incident to arrest: court held this exception did not

apply to blood tests, because blood tests are “highly intrusive.”

Exigent circumstances: court held this exception did not apply under the totality of the circumstances.

State v. Trahan Court then addressed whether the driver’s substantive due

process rights were violated. Court held that “every citizen has a fundamental right to be

free from unreasonable searches.” Given there was no warrant, and no warrant exception, this fundamental right was implicated, which triggered strict scrutiny of the test-refusal statute

Court concluded that the government has a compelling interest in highway safety, but struck down the test-refusal statute “as applied” to the driver because it was not narrowly tailored to achieving that purpose.

State v. Trahan Minnesota Supreme Court accepted

review Oral arguments occurred on June 8, 2016 Parties submitted supplemental briefs

after Birchfield No decision yet…

Poeschel v. Comm’r of Public Safety, 871 N.W.2d 39 (Minn. Ct. App. 2015) Released October 26, 2015 Driver was arrested for DWI and read the Advisory. Driver then said she would take a urine test “because I

am required to.” Driver failed the urine test and her license was revoked.

Poeschel v. Comm’r of Public Safety Court began its analysis by rejecting driver’s due

process argument, holding that when a claim “is covered by a specific constitutional provision, that claim must be analyzed according to the standards established by the specific provision, and not as a possible violation of the claimant’s substantive-due-process rights.” Id. at 45.

Court then applied the Brooks totality of the circumstances test, concluding her consent was valid: “the implied consent advisory accurately stated that refusal to take a test is a crime, Poeschel’s right to counsel was vindicated, and she voluntarily consented to the test that was offered.” Id. at 47.

Montonye v. Comm’r of Public Safety, No. A15-0210, 2015 WL 7201256 (Minn. Ct. App. Nov. 16, 2015) (unpublished) Driver arrested for DWI, read the Advisory, refused a

breath test. Officer got a warrant, and obtained a blood sample.

Driver’s license was revoked for refusing a test. “If a person refuses to permit a test, then a test must not be

given . . . .” Minn. Stat. § 169A.52, subd. 1. Court held that it was “improper police conduct” to obtain a warrant after the driver had refused, but driver’s refusal was not “fruit” of the that misconduct because it came after the driver had already refused.

State v. Thompson, 873 N.W.2d 873 (Minn. Ct. App. 2015) Released December 28, 2015: refusal of urine test Court applied the same analysis as in Trahan, finding that the

search incident to arrest exception did not apply because urine tests intrude upon “expectations of privacy” held by society. Court did not address any other warrant exceptions before concluding that “no except to the warrant requirement” applied.

Substantive due process analysis followed Trahan—warrantless search implicated the driver’s fundamental right to be free from unreasonable searches, which triggered strict scrutiny, which the statute failed “as applied” to the driver because it was not narrowly tailored.

State v. Thompson Minnesota Supreme Court accepted review Oral arguments occurred on June 8, 2016 Parties submitted supplemental briefs after Birchfield No decision yet… Hopefully will give us more guidance on urine tests,

which were not addressed in Birchfield

Kuehn v. Comm’r of Public Safety, No. A15-1278, 2016 WL 1619372 (Minn. Ct. App. Apr. 25, 2016) (unpublished) Driver was arrested for DWI, read the Advisory,

spoke with an attorney, and asked for a breath test. Breath test came back “interference error” so driver

agreed to a blood test which he failed. Court applied Brooks and held consent was

voluntary. “Unlike in Trahan and Thompson, Kuehn was not

charged with test refusal and his license was not revoked because he refused to submit to a test; rather, his license was revoked after he consented to a warrantless search.”

Heinz v. Comm’r of Public Safety, No. A15-0964, 2016 WL 1619227 (Minn. Ct. App. Apr. 25, 2016) (unpublished) Driver was arrested for DWI & read the Advisory,

declined to speak with an attorney, and refused both blood and urine testing.

Court acknowledged that Trahan and Thompson apply “in the context of criminal prosecutions” for test refusal; but held that Stevens v. Comm’r of Public Safety, 850 N.W.2d 717 (Minn. Ct. App. 2014) controls in implied consent refusal cases.

What does this all mean?!

Going forward: law enforcement likely getting warrants for blood/urine tests This means no IC revocation, but there will still be a revocation if convicted

of DWI Potential issues if officer gets warrant and still invokes IC, especially if

driver knows about warrant before consenting Yet to see what Court of Appeals will do with IC revos based on

blood/urine testing and refusals post-Birchfield Could still rely on Brooks in consent cases

Will need to determine if McDonnell v. CPS applies Could keep distinguishing IC refusals from criminal refusals Could also apply good-faith exception to exclusionary rule under

Lindquist if timing of incident allows

DMT Tests & Uncertainty of Measurement

Some brief background…

BCA is an accredited calibration lab by ASCLD Have been calculating calibration uncertainty for fleet

of DMTs This accreditation does not require them to report

uncertainty for individual tests Not many states that do this

In early July, BCA completed calculations for test uncertainty They can now supply a “confidence interval” for the

average of a driver’s two breath samples

Uncertainty & IC Hearings

In the past, courts had rejected “margin of error” arguments in IC context Are uncertainty and margin of error the same?

DMT tests are admissible by statute (Minn. Stat. § 634.16) Challenges being made to their reliability More difficult to challenge tests that aren’t “on the line,”

i.e. 0.08 or 0.16 Lower burden of proof in IC hearings No caselaw on this new development yet

Questions? Talk to the experts!

bca.breathtest@state.mn.us (651) 793-2777

Minn. Stat. § 171.19 Petitions

What are they for?

Any person whose driver’s license has been refused, revoked, suspended, canceled, or disqualified EXCEPT under § 169A.52 (implied consent) or

§ 171.186 (child support)

File within 180 days of effective date or before expiration of withdrawal period

Examples: ignition interlock, B-card violations, out-of-state violations, CVO

Keep In Mind

Court determines whether Petitioner is entitled to reinstatement Petitioner bears the burden of proof (Pallas v. Comm’r

of Public Safety, 781 N.W.2d 163, 166 (Minn. Ct. App. 2010))

Per the statute, Petitioner must be present and available for cross-examination

Commissioner can present evidence by affidavit Usually a reply will be filed before the hearing

DVS Contacts

General Driver Evaluation (651) 296-2025

Ignition Interlock dvs.ii@state.mn.us (651) 296-2948

Records (651) 296-2940

License Status Check: www.mndriveinfo.org

Thank you for coming!

Any questions?

corybeth.monnens@ag.state.mn.us