three (yes, he was a busy guy) separate DWI cases today. The Court also tacitly ruled that Minnesota's Implied Consent law, which states that it is a crime to refuse BAC testing, is constitutional, though merely holding that Brooks did not show it was unconstitutional. That said, the Brooks decisions leaves a lot of questions unanswered.
The Court's ruled that, under the totality of the circumstances, Brooks had "consented" to supply his urine and blood to police following his arrests. The Court found there was consent even though Brooks agreed to the tests after specifically being told it was a crime to refuse. Because he did not refuse, but instead "consented", the police did not need to obtain a warrant. The Syllabus of the decision states: "When, based on the totality of the circumstances, appellant consented to the search, police did not need a warrant to search appellant’s blood or urine."
In reaching its decision, the Court emphasized that there was nothing in the record showing that Brooks was, in fact, agreeing to test only because he was told refusal was a crime. It also emphasized that fact that Brooks had consulted with an attorney on the phone before agreeing to test. This leaves open the possibility that the result could be different for the guy/gal who said, "I agree to test, but only because I'll be charged if I don't." I know there are lots of people who said words to that effect, and so such an appeal will no doubt be coming soon.
The Court's decision makes clear that a person is not legally coerced simply because he/she is told it is a crime to refuse. The Court attempts to explain, as other courts before it have, that it is not coercive or deceiving to merely tell a person what the ramifications of their choices will be. After all, the person is given the choice to refuse, albeit with criminal consequences.
To me, that explanation requires a great deal of pretending. To begin, the focus is only the behavior of the police, and not the effect on the subject. The State had the burden of proving Brooks's consent, not there other way around. There is a presumption against the loss of constitutional rights. So where did that occur in this case? The real issue-- the actual effect of the words that everyone agrees was read to Brooks, "refusal to take a test is a crime"--is just sidestepped. In my opinion, the old adage that there is an "OWI/DWI exception to the constitution" has more force after today.
Thankfully, this was not lost on Justice Stras, whose concurring decision stated, "It is hard to imagine how Brooks’s consent could have been voluntary when he was advised that refusal to consent to a search is a crime." Justice Stras concurred only that the BAC evidence should not be suppressed, because at the time the blood and urine were obtained, the police were operating on state case law that permitted warrantless blood draws in all Minnesota DWI cases, based on exigent circumstances. Basically, he believed the "good faith" exception decided the case.
The argument that everyone who drives has consented ahead of time was discussed but not resolved in this case. When "consent" takes place is something left for later cases. However, since the Brooks Court analyzed consent at the point of the Implied Consent decision, and not the time of obtaining a driver's license or driving, it seems awful
inconsistent for anyone to now assert that consent happens at an earlier time. After all, the Court determined that Brooks had consented, not that he had withdrawn his prior consent.
As mentioned, the Brooks Court also rejected Brooks's argument that the Minnesota Implied Consent statute was unconstitutional. In so holding, it recited language in Missouri v. McNeely that can be viewed as approving of implied consent statues generally.
Overall, the Brooks case does not give the Minnesota Implied Consent statute a free pass. Instead, the focus will be on the individual circumstances surrounding the supposed consent, something that many District Court judges with cases awaiting this decision will no doubt lament.