Can police in Minnesota perform blood alcohol testing without a warrant?

Minnesota Supreme Court Justices to decide the right for police to take warrantless blood samples

Many Minnesotans are surprised to hear that they've already consented to breath, blood and urine testing by police simply because they legally obtained a driver's license. Minnesota passed an "implied consent" law in 1961, which held that by virtue of obtaining a driver's license, Minnesota residents have consented to take a drug and alcohol test if stopped by police.

The law was later amended to make it a crime to refuse to submit to a test. Today, if a person refuses to take the test, they are subject to several penalties, including a longer loss of driving privileges, fines and jail time. This law has come under scrutiny in the last several years based on challenges brought by attorney Jeffrey Sheridan. In 2013 the U.S. Supreme Court issued a significant opinion in the case of McNeely v. Missouri. In that decision, the Supreme Court Justices ruled that Missouri police could not conduct a blood test without a warrant. Missouri argued that because alcohol dissipates over time, police could conduct a warrantless search before the evidence was "destroyed." The U.S. Supreme Court did not buy the argument, however, holding that the body's natural ability to get rid of alcohol did not justify foregoing getting a search warrant.

Minnesota Justices to rule on the issue

Two questions are before the Minnesota Supreme Court in the wake of the McNeely decision. One is whether a Minnesota driver has the constitutional right to withhold consent from taking an alcohol concentration test. The second is, assuming there is a right, whether the state can criminalize the exercise of that right. The case before the court is State v. Bernard.

In 2013, the Justices ruled in a different case ( State v. Brooks ) that drivers can be considered to have "consented" to a test, even if they are first threatened with being prosecuted for refusing. However, the case did not resolve whether Minnesota's criminal refusal law itself is constitutional.

At oral arguments on September 4, 2014, Minnesota criminal defense attorney Jeffrey Sheridan pointed out that only 11 states make it a crime to refuse a test. In the 39 other states, the tests are "encouraged" by making the administrative license revocation for refusal much longer than that for a test failure (over the legal limit). This same system of "encouragement" was exclusively in use in Minnesota as well until 1988. Minnesota could easily revert back to that system here. In addition, if the law were amended to permit it, police could also obtain warrants before taking samples. In some cases, obtaining a telephone warrant could take as little as 15 minutes. Minnesota state officials argued that this would be too burdensome on police and judges.

Sheridan argued that the Fourth Amendment is not designed as a tool to expedite law enforcement, but a constitutional right to be free from warrantless intrusions by officers. The Fourth Amendment is designed to put a referee in the game-to put a judge between the person eager to conduct the search and the person being searched.

Under the Fourth Amendment of the U.S. Constitution, warrantless searches are presumed to be unreasonable. This means that police must have probable cause and a warrant to search, with limited exceptions.

The Minnesota Supreme Court will issue a decision on the matter in the coming months.

Accused of a DUI?

Driving under the influence of alcohol or drugs is a significant charge in Minnesota. Those convicted of drunk driving can face a host of consequences. Minnesota drivers charged with DUI should contact the experienced criminal defense attorneys at Sheridan & Dulas, P.A., to discuss their legal options and protect their constitutional rights.

Keywords: DUI, alcohol testing, 4th Amendment, implied consent