Minnesota Court of Appeals: Warrant Needed for DWI Blood Test, Refusal to Test Without Warrant Not a Crime

Published On: October 17th, 2015

After years of challenges from defense attorneys in Minnesota, the Minnesota Court of Appeals has finally acknowledged that a search warrant was needed for a DWI blood test request, and the driver’s refusal to submit to that test in the absence of a warrant cannot be a criminal offense.  This decision is extremely important, but is limited in its scope.  First of all, the decision applies ONLY to blood tests directly.  The Minnesota Supreme Court held last year that a warrant was not needed for DWI breath test requests, which means the refusal to take a breath test can still be a crime.  (That decision is awaiting possible review by the U.S. Supreme Court.)  As for urine tests, that is an unanswered question at this point.

More than ever, it is critical that anyone who has been arrested for DWI seek legal advice prior to making the decision about taking the test for the officer.  The DWI Guys are available 24 hours, 7 days a week for free testing advice at 1-800-DWI-GUYS.  The law is drastically different depending on the type of test being asked for by the officer.  We suspect that officers will be instructed to offer breath tests only whenever possible, which they already do in the vast majority of cases.

This new decision also calls into question whether the current Implied Consent Advisory form violates due process by advising all drivers that “refusal to take a test is a crime.”  This Advisory must be read to a DWI offender before the officer requests an official alcohol concentration test at the police station/jail.  An argument can now be made that the Advisory gives bad advice to individuals who are eventually asked to take a blood test without the officer obtaining a search warrant first.  Again, this applies to a small percentage of DWI offenses because most officers request breath tests, but it is a step in the right direction when it comes to preserving individual rights.

Major Change to DWI Law in 2015 Results in Harsher Penalties for Many Offenders

Published On: October 17th, 2015

It seems like the Minnesota Legislature changes parts of the DWI laws every year that increase penalties on drunk drivers while making the process more easy for officer and courts to convict them.  One major change that took effect for offenses occurring on or after August 1, 2015 is creating harsher penalties than ever for many offenders, most notably first time offenders.

The change concerns the alcohol level needed to create an “aggravating factor” in the DWI offense, which was lowered from .20 to .16.  The change was made to reflect the original concept for this aggravating factor, which was set at .20 back when that was double the previous limit of .10.  The legal limit was lowered to .08 back in 2005, but the aggravating threshold remained at .20 until this year.

So what happens when a person reaches the “aggravating” threshold of .16?  First of all, the person must be held in custody until a judge sets bail and conditions of release, even if it’s a first-time offense.  Once a judge reviews the case, the law requires the person to only be released if they post the maximum allowed bail/bond of $12,000 or if they agree to participate in a daily electronic alcohol monitoring (EAM) program until their case is resolved.  The EAM program has a daily fee of $12-20 depending on the county, and the person is required to blow into a machine three times each day, seven days a week, to verify sobriety.

Second, the aggravating threshold will cause the DWI offense for first-time offenders to be bumped up to a gross misdemeanor level, which is a more serious level of criminal conviction to have on record if convicted.  Gross misdemeanors typically have longer probationary sentences (2-6 years compared to 1-2 years for misdemeanors), higher fines (mandatory minimum of $900 compared to $300 for misdemeanors), and more jail time stayed for probation violations that may occur (one year compared to 90 days for misdemeanors).

Third, the aggravating threshold can be used a second aggravating factor in combination with either a prior DWI within ten years or the presence of a child under 16 to cause the vehicle used for the offense to be forfeited to the state.  Many more cases have fallen into this category and allowed police to forfeit even more vehicles than they already had been.

With all of these increased penalties at a lower alcohol level than before, some may think that refusing the test is a better option.  However, the refusal to test already starts at an aggravated level similar to the way a test of .16 or more does.  There may still be benefits to certain individuals for refusing the test when it comes to the license revocation and license plate impoundment penalties, so it’s wise to consult with an attorney prior to making the decision about testing to determine the best course of action.  The DWI Guys are available for testing advice 24 hours a day, 7 days per week at 1-800-DWI-GUYS.

Minnesota Police and Prosecutors: Stop Stealing Vehicles

Published On: April 7th, 2014

Minnesota is one of many states that have laws giving the police and prosecutors the power to seize and ultimately forfeit a vehicle used by a repeat offender to commit a DWI. At first, this sounds like a reasonable, just goal. After all, the public must be protected from repeat offenders by taking away their means to put others at risk. However, there is new technology available in Minnesota that protects the public even better than forfeiture can: Ignition Interlock Devices (IID’s). This is a call to the Minnesota State Legislature to modify our existing DWI vehicle forfeiture laws in a way that will INCREASE public safety without needing to steal vehicles from individual offenders, innocent non-offender owners, and families.

First of all, let’s examine the circumstances that allow law enforcement and prosecutors to take vehicles away. Under current law (Minn.Stat. 169A.63), a vehicle may be forfeited if the offender is:

1. Convicted of a Second Degree DWI by having a combination of two of these factors: prior impaired driving offense within ten years (each prior within ten counts separately), testing at .20 or more, or having a child in the vehicle under the age of 16;

2. Convicted of a Second Degree Test Refusal by committing refusal to submit to testing while having one or more prior impaired driving offenses within ten years or having a child in the vehicle under the age of 16;

3. Convicted of a First Degree Felony DWI or Test Refusal (this happens if the person has three prior impaired driving incidents within ten years of the new offense or if the person has ever been convicted in their lifetime of a felony-level DWI or Criminal Vehicular Operation/Homicide);

4. Facing an impaired driving-related loss of license within ten years of two prior impaired driving incidents;

5. Convicted of a DWI or Test Refusal while the offender’s license is cancelled as inimical to public safety (this happens when a person has four DWI offenses in their lifetime over any span or if the offender has a third DWI offense within ten years of having their license reinstated after getting two DWI offenses within five years of each other); or

6. Convicted of a DWI or Test Refusal while the offender has a restriction on their driver’s license that forbids the use or possession of alcohol or controlled substances (this happens when a person whose license was cancelled as inimical to public safety fulfills the DMV requirements to get valid again).

While most of these categories are aimed at taking away vehicles from repeat offenders, it is important to realize that category 1 or 2 above can include a first time offender. For example, if a person refuses to submit to testing and had a child in the vehicle at the time of driving, or if a person tests at .20 or more and had a child in the vehicle at the time of driving. It is also important to note that the law allows the police and prosecutors to forfeit a vehicle even if the vehicle did not legally belong to the offender. They only need to prove that the offender was legally entitled to use, possess, or control the vehicle, without regard to whether the offender is even on the vehicle title. If a vehicle is jointly owned by an offender and someone else, the non-offender’s interest also is forfeited by law.

There can be no doubt that Minnesota’s DWI forfeiture law is harsh, as it was designed to be. However, consideration must be given to the rights of the individuals who are losing their personal property in these situations. According to the federal and state Constitutions, the government must balance the rights of the individual against the interests of the public to be safe. In its pursuit of public safety, the government must use the least punitive means to achieve that goal. This is where the current law in Minnesota fails. The law should be modified to allow for the return of vehicles to offenders and non-offending owners if they have an IID installed in the vehicle under the DMV’s Ignition Interlock Program. This solution protects the public AND protects the individual owner’s property interests.

Maybe Constitutional “technicalities” don’t bother you when it comes to DWI offenders (they should, but that is a topic for an entire other article). Well, aside from the Constitutional problems in Minnesota, the current law actually makes no sense when considered as a whole. In every single forfeiture category listed above, the offender will have their license revoked or cancelled. For those who have their license revoked, they will only be able to drive during the revocation period if they drive a vehicle equipped with an IID. For those who have their license cancelled, they will never be able to drive for the rest of their lives until they prove at least 3-6 years of continuous sobriety to the DMV (depending on number of previous license cancellations).

Here is where the real insanity begins. Guess how the DMV requires a cancelled offender to prove sobriety? By participating in the Ignition Interlock program and performing at least 30 ignition starts per month for at least three years (up to six years for repeat cancelled offenders). If the police and prosecutors are taking away a cancelled offender’s vehicle immediately upon arrest, how can that offender ever comply with the DMV requirement of proving sobriety with an IID? The cancelled offender must purchase a whole new vehicle. One law takes away a vehicle while another law requires the offender to obtain a vehicle.

The Ignition Interlock program is already expensive enough without forcing someone to buy an entirely different vehicle. An individual must prepay the $680 reinstatement fee to the DMV, pay approximately $150 to have the IID installed, and obtain prepaid auto insurance on the vehicle being used for the program. It actually becomes a cheaper option for the cancelled offender to obtain a new “beater” vehicle and drive it illegally, which many people feel they need to do to stay employed and provide for their families. Many of these people get caught and the subsequent time and resources used to convict, supervise and/or jail them is astronomical. The system is broken, and it can be easily fixed. Many of these repeat offenders would be able to afford the Ignition Interlock program if they didn’t have to go out and buy a whole new vehicle first. Stop stealing vehicles when it isn’t necessary anymore to protect the public.

Finally, the most powerful opponents of drunk driving agree that IID’s prevent drunk driving and increase public safety. MADD has stated that less than 1% of participants in an Ignition Interlock program reoffend, which is phenomenal. See http://www.madd.org/drunk-driving/state-stats/Minnesota.html. It is not often that a DWI defense attorney can cite to MADD in support of something, but this is an easy example. Heck, even our own State Representatives encourage individuals to participate in the Ignition Interlock program: a law passed a couple of years ago allows a judge to ignore the mandatory minimum jail penalties for repeat offenders if the judge makes it a condition of probation that the offender only drive vehicles equipped with an IID. See Minn.Stat. 169A.275, subd. 7. Many offenders whose vehicles are stolen by the police cannot afford to go out and buy a new vehicle to give them the chance to avoid that mandatory jail time–they simply must serve the time. How fair is that? If our State Representative want to encourage repeat offenders to participate in the Ignition Interlock program, then stop allowing the police and prosecutors to steal vehicles away from these offenders.

Minnesota’s current law denies repeat offenders (and some first time offenders) with the means to participate in the Ignition Interlock program by allowing the police and prosecutors to steal the vehicle upon arrest. While “steal” may sound like a strong word, what other word can describe this behavior given the Constitutional issues involved, the inconsistent legal requirements from the DMV, and the safety reality of vehicles equipped with IID’s? It’s time for the Minnesota State Legislature to update this arcane law and STOP law enforcement from unnecessarily stealing vehicles from offenders. The public is better served by participation in the Ignition Interlock program, which gives repeat offenders the means to safely continue working, attending treatment/AA, and complying with other court orders. It provides a positive incentive to repeat offenders to maintain sobriety while avoiding the devastating financial loss of forfeiting their vehicle. And don’t forget, it allows innocent non-offenders (usually spouses or parents) a means to keep their vehicles as well.

If you agree with this article and want your State Representative to support legislation that protects the public, encourages sobriety, and allows individuals to keep their property, contact your State Representative today with this link: http://www.gis.leg.mn/OpenLayers/districts/.  Type in your zip code, then click the links for your State House and Senate members for their email addresses and phone numbers. Send them a link to this article and let’s make a difference.

Derek A. Patrin
Ethan P. Meaney
Meaney & Patrin, P.A.

DWI Guys Win DWI Appeal on Illegal Entry

Published On: February 11th, 2014

Ethan Meaney of the DWI Guys at Meaney & Patrin scored an impressive reversal victory today at the Minnesota Court of Appeals. The issue appealed concerned whether the arresting officer made an illegal entry into the Defendant’s home while investigating a possible DWI. The District Court had ruled against our client and he had given up hope of victory, but eventually he decided to appeal the decision after consulting with Ethan about the issue and chances of success. This turned out to be the right choice, as Ethan convinced the Court of Appeals to reverse the DWI conviction and remand it to the District Court. You can read the decision here: http://www.mncourts.gov/opinions/coa/current/OPa130506-021014.pdf.

The factual scenario was somewhat unique, although officers are always trying to push the envelope when it comes to privacy and individual rights. In this case, the investigating officer came to the Defendant’s address after finding a vehicle registered to him parked in the middle of a nearby intersection with nobody present. After knocking on the front door, the Defendant’s father answered the door and was unsure about whether the Defendant had come home yet that night. He told the officer he was not sure, and the officer asked the father if he would go check inside the house. After he left the front screen door, which closed behind him automatically, the officer entered the home and walked far enough inside to look down the stairway (about 6-10 feet inside the home). The officer claimed that the screen door was left open, which he assumed was a non-verbal invitation to come inside the house. The officer also testified it was cold outside with snow on the ground, leading him to assume that the father would have invited him inside. Plus, the officer testified that it was his “common practice” to step into a home in these situations.

The Hennepin County District Court ruled in favor of the State because the judge felt it was reasonable for the officer to assume that he had non-verbal consent to enter the home, but the Court of Appeals reversed that decision noting a lack of evidence in the record to show that the Defendant’s father gave the officer consent to enter the home. The District Court did not make a specific finding about whether the screen door was closed or open when the officer entered, and the officer did not testify about any specific verbal or non-verbal manifestation of consent from the Defendant’s father to authorize entry into the home.

This victory is just one example of how the DWI Guys can use constitutional issues and other procedural issues to challenge the State’s case. We continue to hold officers to their duty to uphold the constitution when they conduct their investigations, and to compel prosecutors to actually prove their cases against our clients. While major victories like this one are hard to come by, the seasoned strategies followed by the DWI Guys give you the best chance to eliminate or minimize the penalties and long-term effects of a DWI arrest.