The Supreme Court of the United States (SCOTUS) will not be reviewing the disappointing October 23, 2013 decision of the Supreme Court of Minnesota in State v. Brooks.  The order denying certiorari was issued this morning, April 7, 2014, thus ending Mr. Brooks' near 5-year battle to avoid conviction for three separate DWI cases.   

SCOTUS remanded Brooks case back to Minnesota in April of 2013 as a part of its decision and order in
Missouri v. McNeely.  McNeely reiterated that, absent consent, police must obtain a warrant before obtaining blood evidence for use in impaired driving convictions.  The ruling obviated dozens of state appellate court decisions that held police could force a chemical test without a warrant in all cases where there existed probable cause for arrest. 

Brooks still stands for the proposition that urine and breath testing, and not just blood draws, fall under the ruling of McNeely.   Brooks also solidifies a defendant's right to a case-by-case analysis of whether his/her purported consent to provide a sample for testing was coerced.  You can read more about Brooks in an earlier article on this site.          

The Supreme Court of Minnesota, in State v. Brooks, today affirmed the lower court rulings in Wesley Eugene Brooks's
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.

The Minnesota Supreme Court will issue its decision in State v. Brooks tomorrow, October 23, 2013, at 10 a.m.  The
decision is expected to provide much-needed guidance to the MN District Courts, which have split on what the landmark decision, Missouri v. McNeely, means for people who have been BAC tested for blood, breath or urine under the Minnesota Implied Consent Law, especially those who have been tested afterMcNeely's release in April.  The case is of such importance that the MN Supreme Court expedited its review after it was remanded by the Supreme Court of the United States.     

You can find the Brooks decision here tomorrow.  I can't wait to read it and supply some analysis.

The rulings are rolling out in DWI cases in Minnesota where motions for suppression are being raised in light of the recent Supreme Court of the United States ("SCOTUS") ruling in Missouri vs. McNeely.  The outcomes of these rulings are quite polar, as demonstrated by the two examples below. 

In the first example, an Anoka County case, the defendant's motion is granted, and test evidence is suppressed.  In that case, the positions and reasoning of the defendant seem almost wholesale adopted by the court.  In the second, a Hennepin County case, the motion is denied.  In that case, and the defendant's arguments in favor of suppression are set up and knocked down one by one. 

No doubt these and many other cases will be appealed by the respective parties.  There are many, many more such rulings to follow.  Thankfully, there should be some clarity coming from the Supreme Court of Minnesota.  The Court agreed to expedite Brooks v. Minnesota, No. 12-478 (Order filed April 22, 2013).  Brooks and two other  Minnesota cases (two of which were urine tests) were remanded back to the State of Minnesota by the SCOTUS in light of the ruling in McNeely.  Oral arguments are set to commence on September 11, 2013.  A decision should follow in a couple months.

I have been defending Minnesota DWI cases since first being admitted to practice in Minnesota in early 2001.  Though I have always had my law office located in Wisconsin (La Crosse, 2000-2008, and Onalaska 2008-present), I have been representing clients in South-Eastern Minnesota since 2001.   I have insisted on keeping on top of all the developments in Minnesota DWI and criminal law, to ensure my Minnesota clients get a state-of-the art defense.  In fact, I was the only attorney in our area to become a member of the Source Code Coalition, which was a group of Minnesota DWI attorneys who pooled their resources and fought to keep he flawed Intoxilyzer 5000 breath testing machine out of Minnesota courts.

Keeping on top of Minnesota DWI law requires attendance at the Annual Minnesota DWI Defense seminar in the Twin Cities area.  This year's seminar, held on June 14th, was especially exciting, due to the recent case, Missouri v. McNeely.  In McNeely, the Supreme Court of the United States ruled that warrantless, non-consensual OWI/DWI/DUI blood draws are unconstitutional.

The speakers on the topic of McNeely were Chuck Ramsay, Jeffrey Ring, and Jeff Sheridan.  These preeminent attorneys have spent their gifted careers representing DWI defendants in the Minnesota District Courts.  They were each very excited that the Supreme Court of the United States has finally declared unconstitutional the practice of forcing OWI/DWI/DUI suspects to submit to blood draws without first getting a warrant based on probable cause.  In fact, Jeffrey Ring described McNeely as the most important case in the area of DWI defense during his long career.   That is is really saying something,

Minnesota requires arrested DWI suspects to submit to a breath, blood, or urine test.  Refusal to test is a crime in itself, often more serious than the DWI they were arrested for.  Almost all DWI suspects are read an Implied Consent advisory that tells them that it is a crime to refuse testing.  In other words, there is no such thing as consent to the test.  There is a strong argument that, like the blood test in McNeely, breath tests and urine tests will also be deemed to require a warrant.   Despite the McNeely ruling,  law enforcement is not getting warrants prior to requiring submission to their tests.  That means any BAC test is subject to challenge. 

All competent DWI defense attorneys are challenging these tests at the trial court level.  Attorney Jeff Sheridan already has a case postured to lead the challenge in the Minnesota courts of appeal.  I will be doing my part, and I will be watching carefully to ensure my client's rights are preserved, and that McNeely is enforced.  If you have been charged with DWI in any county in South-Eastern Minnesota, including Houston County, Winona County, Fillmore County, Olmstead County, and Wabasha County, feel free to contact me for free information.