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Ruling narrows DWI protections

 By: Barbara L. Jones  July 12, 2019 0

The Minnesota Supreme Court narrowed the protections for drivers accused of driving under
the influence by ruling in State v. Rosenbush that the limited right to counsel before
consenting to a blood test does not apply when the state has a warrant for a blood draw.

The search warrant statute, Minn. Stat. 171.177, requires police to inform drivers that refusal
to submit to a blood or urine test is a crime. Police need not inform drivers that they can
refuse the test.

The Dakota County District Court judge suppressed the results of the defendant’s blood test
but the Court of Appeals reversed in a pretrial appeal of the suppression order. The Supreme
Court, in a 4-3 ruling, affirmed the Court of Appeals. Justice Anne McKeig wrote the majority
opinion, and Justice Natalie Hudson wrote the dissent, joined by Justices Margaret Chutich
and Paul Thissen.

“We are confident that conducting a search pursuant to a lawful warrant adequately
safeguards the ‘human rights [and] human dignity about which we were concerned in [the
[past] and supplies meaningful ‘procedural protection for the rights of the criminally
accused.’” wrote McKeig.

A limited right to counsel before blood alcohol testing was recognized in 1991 in Friedman v.
Commissioner of Public Safety, an implied consent case.

Friedman has been interpreted in recent opinions leading to Rosenbush, where the court
recognized that a search warrant ameliorates due process concerns posed in earlier cases.
Rosenbush follows last year’s opinion in State v. Hunn, where the court said that a driver’s
limited constitutional right to counsel is not triggered unless the statutory implied-consent
advisory is read and does not apply in criminal cases. Also last year, in State v. Mike, the
Court of Appeals ruled that when testing is authorized by a search warrant, failure to advise
a defendant that test-refusal is a crime does not require that the test results be suppressed.

The issue isn’t settled, predicted attorney Daniel Koewler, who wrote an amicus brief for the
Minnesota Association of Criminal Defense Lawyers. He believes there will still be litigation
over the right to refuse a search warrant. “I have a hard time with cutting attorneys out of a
complicated [blood alcohol content testing] process when the process has been structured
around an attorney’s advice about the driver’s rights and consequences,” he said. “The
driver’s legal rights are difficult to explain so it’s important to have guidance before taking
the text or exercising the statutory right to refuse,” he said.
But attorney William Lemons of the Minnesota County Attorney Association agreed with the
court that an object of a search warrant does not have the right to refuse the search but
must allow the search and move to suppress the results. It is immaterial that Minn. Stat.
171.177 does envision the driver refusing the test, he said. “It’s a crime to refuse [to take
the test] just as it’s a crime to obstruct justice,” he said.

Dakota County Attorney James Backstrom responded to Minnesota Lawyer’s inquires by

email. He wrote, “Our office is very pleased with the Court’s decision in Rosenbush. It’s a
significant case that finally lays to rest a DWI suspect’s right to consult with counsel
following the 2017 statutory amendments to Minnesota’s implied consent laws —
amendments the State Legislature enacted in direct response to the United States Supreme
Court’s decision in Birchfield [v. North Dakota]. Minnesota law now appropriately requires
peace officers to obtain a search warrant before obtaining a blood or urine sample from a
person suspected of driving while under the influence thereby vindicating the suspect’s
Fourth Amendment rights.

“Even though a DWI suspect does not have the right to consult with counsel prior to the
execution of the warrant, after charges are filed, the suspect does have the right to seek
suppression of the test by challenging the search warrant. This decision implicitly recognizes
that a DWI suspect has no greater right to consult with an attorney than does a suspect in a
non-DWI criminal investigation prior to a search warrant being executed on their person.”

A warrant changes things

Police arrested Jennifer Rosenbush after an auto accident but took her to a hospital instead
of jail. While she was being transported, police obtained a search warrant and the blood
draw showed that her BAC was over the limit.

The Court of Appeals said that “because the deputy did not give Rosenbush a choice
between alternatives that carried different, significant, legal ramifications,” she did not have
a limited right to counsel under Friedman.

The difference between Friedman and recent cases is the result of legislation passed in 2017,
after the U.S. Supreme Court decision in Birchfield. That law, Minn. Stat. sec. 169A.51, subd.
3, requires a search warrant in most cases. It also changed the implied consent advisory for
blood and urine tests, which now only requires police to inform drivers that refusal to submit
to a test is a crime.

Under this law, McKeig wrote, the presence of a warrant fundamentally changes Rosenbush’s
status from that of Friedman. Although Rosenbush had a choice whether or not to comply
with the warrant, that was not enough to justify an extension of the right to counsel to
warranted searches, the court said.

Rosenbush’s situation was like any other where a search is conducted pursuant to a warrant,
the court said, “[a]nd we have never held that the Minnesota Constitution provides the
subject of a search warrant with the right to consult counsel before a warrant can be
executed.”

The existence of a search warrant eliminates many of the concerns that led the court to
expand the right to counsel, McKeig continued. A neutral judicial officer approves the
warrant, the court noted.

Furthermore, changes to the Minnesota Impaired Driving Code have made a driver’s choice
less meaningful, McKeig continued. Test refusal carries similar penalties to a DWI conviction,
which further cuts against the utility of where little explanation of “the alternative choices”
and “legal ramifications” is necessary, the court said. (The court noted in a footnote that a
constitutional search must be based on probable cause and must be reasonable.) Therefore,
there is no reason to extend the right to counsel in search warrant cases, the court
concluded.

Dissent: Test should be suppressed

 The dissent noted that the decision of whether to take the test is still serious, even if there is
a warrant. The stakes are higher than they were when Friedman was decided because test
refusal was not a crime at the time of that offense.

And the implied consent law still requires a “unique decision” implicating the right to counsel
because law enforcement is prohibited from taking a sample if there is a refusal and a
criminal penalty ensues, Hudson wrote.

The dissent also said that the Fourth Amendment protections against unreasonable searches
and seizures and the doctrine of the right to counsel protect fundamentally different interest
and “the presence of one does not negate the utility of the other,” Hudson wrote.

The dissent also noted that the decision deprives drivers of counsel to explain the difference
between the various implied consent and criminal consequences.

The consequences to drivers are “as real today as they were when we decided Friedman and
Hunn, and therefore, drivers such as Rosenbush should have a limited right to counsel as
well,” the dissent concluded.

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