Yesterday, on October 23, 2013, the Minnesota Supreme Court ruled on State v. Brooks, a case sent down from the United States Supreme Court in conjunction with its decision in McNeely v Missouri.
Immediately considered a landmark 4th Amendment case, McNeely held that the dissipation of alcohol in blood did not constitute a single-factor exigency allowing an exception to the warrant requirement.
The United States Supreme Court's holding created great anticipation from our Supreme Court to rule on the issue of whether blood, urine, and/or breathe samples are exigent circumstances exceptions to the search warrant requirement of the 4th Amendment. There was also much anticipation that the Court would rule on the constitutionality of Minnesota's Implied Consent Statute itself, as Mr. Brooks was read his Implied Consent advisory (which told him that when there is probable cause that a suspect has been driving over the legal limit, the driver must take a chemical test and refusal to do so constitutes a crime).
Somewhat surprisingly, however, the Minnesota Supreme Court did not rule on either of these issues. Here's why: the Court decided that, based on the totality of the circumstances, Mr. Brooks “consented” to testing in all three of his district court cases, and consent itself is an exception to the warrant requirement. Therefore, there was no need to analyze whether there were exigent circumstances due to the dissipation of alcohol (whether discovered from blood, urine, or breathe).
The Court's focus on consent, instead of exigent circumstances, is confounding because it creates such a low standard for what “consent” is. In Brooks, consent was considered voluntarily because it was not “coerced in the sense that [Brooks's] will had been overborne and his capacity for self-determination critically impaired.” Put another way, Brooks's agreement to take the test was “not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test.” The Court further added that, “while the choice to submit or refuse to take a chemical test will not be an easy or pleasant one for a suspect to make, the criminal process often requires suspects and defendants to make difficult choices.”
The Court bolstered its position by essentially using Brooks's invocation of his right to speak with an attorney against him: “[t]he fact that Brooks consulted with counsel before agreeing to take each test reinforces the conclusion that his consent was not illegally coerced.”
Unfortunately, yesterday's decision may bring about more questions than answers. Here are some:
Does the dissipation of alcohol alone constitute an exigent circumstance that allows police to obtain a breathe sample?
(NOTE: It seems that the issue of blood and urine fall under McNeely: “Brooks argues that under McNeely, the warrantless searches of his blood and urine cannot be upheld solely because of the exigency created by the dissipation of alcohol in the body. We agree.”)
Will there be a future challenge that directly addresses the constitutionality of Minnesota's Implied Consent laws?
Probably the most important question is: how does a suspect avoid refusing, and thus committing a crime, without consenting to a search, and thus providing an exception to the officer's requirement to obtain a warrant?
You should always contact an experienced DUI lawyer when confronted with the decision of consenting to testing of any kind. Brooks has made this clearer than ever.
Contact Attorney Eric J. Olson and Attorney Judson A. Nichols.