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.