MN Supreme Court Finds DUI Blood Draws Aren't 'Coerced,' Despite Refusal Resulting In Criminal Charges

from the constitutional-issue-still-up-for-grabs dept

A rather bizarre ruling has been handed down by the Minnesota Supreme Court on the warrantless acquisition of blood and urine samples from DUI suspects. The plaintiff, Wesley Brooks, provided the samples which were used as evidence in each of his three DUI convictions. Brooks is arguing that he can’t truly have “consented” to these searches because the state’s laws provide no acceptable way to decline them. According to him, the statutes governing these collections turn it into state-approved coercion.

According to the court, Brooks had already given his “implied consent.” Furthermore, he voluntarily agreed to each of the collections. But these two facts, which seemingly paint Brooks into a corner, aren’t what they seem at face value.

First, the way the state determines “implied consent” to blood and urine collection is very questionable.

That law [relating to implied consent], established in 1961, says anyone issued a driver’s license has automatically agreed to chemical testing during a DWI arrest and the results can be used against them in court.

If you don’t agree to this, you don’t get a driver’s license. Tying what many people consider to be an essential object to implied consent is problematic. For most people, a driver’s license doubles as an ID card, something nearly everyone needs to access employment and a host of other services. While an ID card can be obtained on its own, the lack of a valid license opens drivers up to many other charges if they choose to operate a vehicle, another indispensable part of many people’s lives.

Even if someone wanted to skip out on the tied-in “implied consent” by using a license registered in another state, they can’t. Out-of-state licenses are only valid for 60 days in Minnesota [stat. 171.03(g)] and operating a vehicle past that point opens the driver up to misdemeanor charges for driving without a valid license [stat. 171.24 subd. 4,5] (“disqualified” by not passing a written exam or skills test [by not taking one], the first of which is required to transfer a license).

So, this “implied consent” is for all intents and purposes unvoidable. If you have a MN drivers license, you’ve given your “implied consent” for these searches. This likely flew under the radar because it’s tied to driving while intoxicated. If this instead gave drivers’ implied consent to searches of their vehicles whenever pulled over for certain violations, the law wouldn’t have made it past the voting stage. But because it’s tied to a universally reviled behavior, it’s still on the books fifty years later.

The next problem is that, while this is only “implied” consent, opting out of this collection only makes things worse. Refusal to consent to the searches results in additional criminal charges.

Damned if you do and damned if you don’t, but still the court found this didn’t add up to coercion.

“A driver’s decision to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test,” Chief Justice Lorie Gildea wrote in the opinion.

No, it may not be explicitly coercion, but it looks very much like it when every option contains the possibility of criminal charges. The fact that the court was looking at Brooks’ specific case rather than the constitutionality of the law itself seems to have contributed to these illogical conclusions.

“By reading Brooks the implied consent advisory, police made clear to him that he had a choice of whether to submit to testing,” Gildea wrote. “While an individual does not necessarily need to know he or she has a right to refuse a search for consent to be voluntary, the fact that someone submits to the search after being told that he or she can say no to the search supports a finding of ­voluntariness.”

Gildea’s opinion was challenged by another judge, however.

In a concurring opinion, Justice David Stras agreed that no warrant was necessary but disagreed that implied consent does not amount to coercion.

“It’s hard to imagine how Brooks’ consent could have been voluntary when he was advised that refusal to consent to a search is a crime.” Stras wrote.

Because this was limited to Brooks and not the law itself, the court hasn’t made a definitive statement on whether the law is constitutional. But given the facts presented here, Minnesota’s law is standing on very shaky ground. An earlier US Supreme Court decision might help push this law off the books, though.

The Brooks ruling was the first case analyzing how Minnesota law could be affected in the wake of Missouri vs. McNeely, an April U.S. Supreme Court decision that said police officers must try to get a search warrant for a blood sample if they want it to hold up in court. The fact that alcohol quickly dissipates in the blood is no longer justification for not getting a judge’s sign-off, the high court reasoned.

As it stands at this point in Minnesota, “voluntary” means nothing more than being allowed to pick one of two equally awful options.

Sure, people can just not drive drunk and avoid all of this. But it’s not just drunk drivers who are affected. Any number of people suffering from medical conditions have been mistaken for being intoxicated over the years, with diabetes sufferers being the most common. Thanks to Minnesota’s law, these people will be forced to agree to warrantless blood draws and urine collection simply because they’re considered to be driving while impaired. While those will be the exception rather than the rule, the first concern should be limiting the deployment of warrantless searches rather than justifying unconstitutional measures because the end result is drunks drivers being punished.

The state is trying to have it both ways. At the very least, it needs to remove one of the two aspects that make this look nearly indistinguishable from coercion. What should go first is the implied consent the state has tied to an indispensable document, something that forces every driver pulled over for suspected intoxication to provide evidence against themselves.

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Comments on “MN Supreme Court Finds DUI Blood Draws Aren't 'Coerced,' Despite Refusal Resulting In Criminal Charges”

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62 Comments
Rikuo (profile) says:

“?A driver?s decision to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test,? Chief Justice Lorie Gildea wrote in the opinion.”

Lorie, if you’re a reader of Techdirt, read that again. It is not coerced…because it is a crime and thus merits punishment if you refuse…whaa? THAT IS COERCION!!!! It is the textbook definition of coercion
http://dictionary.reference.com/browse/coercion

coercion
  Use Coercion in a sentence
co?er?cion
[koh-ur-shuhn] Show IPA
noun
1.
the act of coercing; use of force or intimidation to obtain compliance.
2.
force or the power to use force in gaining compliance, as by a government or police force.

You, an agent of the government, are using intimidation and the threat of force (the threat of locking him up) in order to get what you want.

Hopalong Placidly says:

Re: Re: In WHAT fucking universe...

in several western states, if you won’t give your consent, they will take it from you, at gunpoint, if needed. oh, and they won’t be held responsible for bruising or infections as a result of the blood draw. thanks, New Mexico, and coming soon to your state. Yea ha ha ha ha, buckaroos.

Nancy Jones (user link) says:

Re: Re: In WHAT fucking universe...

But it isn’t the same thing. My carrying my money around isn’t putting anyone else in danger, but someone carrying alcohol around in his body while driving IS putting someone else in danger. and there are other forms of photo id issued by the state that can provide the same information as a driver’s license, so it can be argued that having a license does imply consent. I believe in freedom, liberty, but I don’t believe I have a right to endanger others. I believe that when I agree to obey the law, that includes proving I am not impaired. I also think that blood/breath/urine tests are far less effective than having someoen walk a straight line.

Anonymous Coward says:

Re: Re:

@ AC Quote = “The problem here is that your statements are suggesting a right to a driver’s license, a right which does not and has not ever existed.”

So since rights can be so loosely applied you must agree that slavery was okay?

You are a shining example of what has gone wrong with America. If we truly espouse ‘Liberty’ then everything is a RIGHT unless there is a law prohibiting it.

Anonymous Coward says:

Re: Re:

“The right of the Citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business.” Teche Lines vs. Danforth, Miss., 12 S.2d 784; Thompson vs. Smith, supra.

Anonymous Coward says:

Re: Re: Re:

This is interesting…

http://www.lawfulpath.com/ref/DLbrief.shtml

It also appears that the argument also turns on the legal definition of the word “license”:

“The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort.”

People vs. Henderson, 218 NW.2d 2, 4

“Leave to do a thing which licensor could prevent.”

Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118

In order for these two definitions to apply in this case, the state would have to take up the position that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could then regulate or prevent.

John Fenderson (profile) says:

Re: Re: Re:2 Au Contraire

And that is one of the key parts of the argument that requiring an license is Unconstitutional

That’s one of the key parts of the argument? Because it’s a really idiotic point. We pay for all sorts of things that we don’t use directly, because we benefit from them indirectly.

In the case of roads, you derive truly huge benefits from the public roads even if you never drive (or are allowed to drive) on them at all. What you pay for is their creation and maintenance.

That is discrimination.

So? Discrimination isn’t illegal unless it’s based on one or more of a narrow set of criteria. It’s not even inherently wrong. I absolutely want for some people to not be allowed to pilot a ton of steel at high peed on public thoroughfares because they present a public danger when they do so.

nasch (profile) says:

Re: Re: Re:2 Au Contraire

You can drive on pubic roads without a license so long as you are orderly and not violating the law, but you need permission (license) to drive on private land?

You need permission from the state (driver’s license) to drive on public roads and permission from the property owner (but not the state) to drive on private property.

Oblate (profile) says:

Is this a loophole?

That law [relating to implied consent], established in 1961, says anyone issued a driver?s license has automatically agreed to chemical testing during a DWI arrest and the results can be used against them in court.
The way I read this is that the only way to legally refuse the chemical testing is if they are also driving without a license. Is this really how the state wants to incent drivers to act?

Tying what many people consider to be an essential object to implied consent is problematic. For most people, a driver’s license doubles as an ID card, something nearly everyone needs to access employment and a host of other services. While an ID card can be obtained on its own, the lack of a valid license opens drivers up to many other charges if they choose to operate a vehicle, another indispensable part of many people’s lives.
Sorry but that’s a bunch of BS. However ‘many people consider’ a license essential, driving is still a privilege. A state-issued non-drivers ID card works as well as a license. As far as being ‘opened up to many other charges if they choose to operate a vehicle’ um, well how about not operating a vehicle without a license? That’s still a law last time I checked. If you choose to violate a law then you will be open to related charges, I think that’s a fairly fundamental principle of law. If driving is truly an ‘indispensable’ part of a persons life then they shouldn’t abuse the privilege.

Warrantless searches may be a problem, but including the above in your argument does nothing to help the case against them.

Lazere says:

Re: Is this a loophole?

I disagree. I live about 30 or so miles from my job. If I can’t drive, I can’t get to work. Before you tell me to get a job in my town or live in the town I work in, know this. The town I live in has no jobs to offer. There are no buses or taxis or anything that could get me out of that town (short of hitchhiking along country roads, that is.) If I can’t drive, I can’t leave the town. If I can’t leave the town, I starve. I do believe this would make it more than a privilege. Perhaps still not a right, but definitely more than a privilege.

Oblate (profile) says:

Re: Re: Is this a loophole?

Driving is a privilege, not a right.

Just because a losing a privilege would make ones life difficult doesn’t make it a right. But I do think that because losing a drivers license would have such a huge negative impact they certainly shouldn’t be taken away lightly. Traveling freely is a right, but that doesn’t mean you always get ignore the rules of the road.

What if someone in your situation were found to be repeatedly driving drunk/recklessly? Should they still be allowed to drive?

Anonymous Coward says:

Re: Re: Re: Is this a loophole?

“What if someone in your situation were found to be repeatedly driving drunk/recklessly? Should they still be allowed to drive?”

No. And someone who goes around shooting people shouldn’t be allowed to own a gun despite the second amendment, and someone who files enough frivolous lawsuits can be deemed a vexatious litigant and lose the right to sue.

Rights can be denied with justification. In the case of driving, the right we would ordinarily have to drive a car is instead restricted, to ensure that drivers have properly learned how to drive.

But I don’t think this translates into saying that if you have this license, it is suddenly a CRIME to decline a warrantless search. Revoking the license if they decline is one thing. But sending them to prison for invoking their rights crosses a line. And to then turn around and say that a person being told they will go to prison unless they do X is not being coerced into doing X is just dishonest.

And all because they don’t want to bother getting a warrant.

Anonymous Coward says:

Re: Is this a loophole?

For an interesting counterpoint, read the legal definitions of ‘drive’ and ‘motor vehicle.’ Technically speaking, if you are ‘traveling,’ you don’t need a license. If you are ‘driving,’ you are doing it for the purposes of commerce, and must be licensed. This is all part of the sovereign citizen movement.

Anonymous Coward says:

Re: Is this a loophole?

“However ‘many people consider’ a license essential, driving is still a privilege.”

Lots of things are privileges. Most of those things do not result in an automatic suspension of your right to not be searched without a warrant.

What’s to prevent the government from saying that getting a license means you consent to all sorts of other things? “Hey, we’re going to search your garage without a warrant to make sure you don’t have any illegal car parts. We’re also going to go ahead and look at your financial records (to make sure you’re not stealing cars) and your medical records (to make sure you don’t have any dangerous conditions) whenever we feel like it. No, you can’t object, you consented when you got your license and you’ll go to jail AND lose your license if you refuse.”

I don’t like being told that I’ve consented to something when I have not done anything of the sort. And I don’t like being told I’m not being coerced when if I refuse I will be forced into jail at gunpoint.

Doug D (profile) says:

And so I have no driver's license.

This article gets at why I’ve managed to reach the age of 45 without ever getting a driver’s license or a state-issued non-driver ID.

(To be clear: I’m not driving illegally. I’m not driving at all.)

The only government-issued ID I have at all is a passport, period, and I routinely don’t carry it on me.

If you’re in a setting with sufficient public transportation, you might be surprised at how easy it is to live this way. (And perhaps by how much money you save by not having a car.)

Lots of folks tell me that living this way just can’t be practical. “In theory, theory and practice are the same. In practice, they often differ.”

Rikuo (profile) says:

Re: And so I have no driver's license.

Same here. Twenty four years old, going on twenty five, been working since I was eighteen, and not once have I ever felt the need to get a car. Even when work was roughly an hour’s walk away (or roughly 20 mins walk, then hoping to time a bus the rest of the way), I still never felt the lack. Anywhere I need to go, I get a bus, train or taxi.

Arsik Vek (profile) says:

Re: Re: And so I have no driver's license.

Which is fine if you live somewhere those things are available. For a large number of people living outside major metropolitan areas, that’s really not an option. I know that my first few jobs were all 7-20 miles from my home, which isn’t that significant in a car, moving at highway speeds, but is a much different story on foot or by bike. Doubly so when you consider that, at a northern climate, a large part of the year there was heavy snow. As a rural area, there was no real public transportation, and while I could theoretically have taken a cab, the cost was prohibitive.

Doug D (profile) says:

Re: Re: Re: And so I have no driver's license.

Well, “where you live” is itself an option. It’s all about choices. I’ve made choices that confine me to major metropolitan areas, but let me live without any real ID. We’re all more willing to accept some constraints and less willing to accept others, but in almost all cases, there’s a choice involved somewhere.

lfroen (profile) says:

Re: Re: And so I have no driver's license.

So, both of you seriously proud of the fact that you’re unable to comprehend why you need a license to operate potentially dangerous machine?

It’s also mind boggling how some US folks confuse “freedom” and “I have no ID card”. Allow me to educate both of you.
In (former) USSR you didn’t have to carry your ID with you. And no, police did not routinely stopped random people on streets and asked “papers”. What purpose would that serve?

Now, here’s another “revealing” piece: DUI is bloody dangerous. Not for driver, mind you. But for every single car and pedestrian around him. That’s not “nothing to fear – nothing to hide” case. Don’t agree – don’t drive.

silverscarcat (profile) says:

Re: And so I have no driver's license.

I live in a rural area where the closest town to me, when I was growing up was 16 miles away. While I could get around in town just fine on foot or bike, going anywhere out of town was impossible without a car.

Now that I’m older, i walk as much as possible, but there’s no way in hell I can go get lots of groceries on foot.

Anonymous Coward says:

Re: 5th Amendment

You can think Mothers Against Drunk Driving for that.

There are many issues with how the justice system works with regards to drunk driving convictions, removing rights, and anything to get higher conviction rates. The goal is no longer justice but punishment by any means necessary. Anything less gets you put on the naughty list by MADD as a child killing family destroying drunk driver supporting judge/sheriff/politician.

Bob Collins says:

Awful choices

// As it stands at this point in Minnesota, “voluntary” means nothing more than being allowed to pick one of two equally awful options.

If only there were a third option somewhere in the chain that wouldn’t be awful.

Anyway, I also wrote about this case.

You’ll find links to the entire decision AND the video of the arguments on that page, which also very much included a discussion of McFeeley.

To me, the MN justices were very much inviting someone to challenge the constitution of the statute. But this was a lousy case to do that, as everyone acknowledges.

Anonymous Coward says:

Who draws the blood? How much is necessary? I skimmed the link and found nothing, skimmed google results and it appears that in some states paramedics are on hand to perform the procedure. If I’m not mistaken, paramedics are scarce and this seems to be a waste of their training.

In other states, is the perp taken to a proper medical facility where a licensed professional performs the procedure? I doubt that cops are qualified. Regardless of their so called training, I would have serious reservations about a cop sticking me with a needle.

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