Bob CollinsEver since a divided U.S. Supreme Court ruled in 2013 that police generally need a warrant to get blood and/or urine from a suspected drunk driver, Minnesota’s law that criminalizes the refusal to submit to testing has been under assault.
In the last few years, the Minnesota Supreme Court, while upholding the so-called “implied consent law” has continued to refine when it can be used.
Today, the Minnesota Court of Appeals may have provided the likely case that will settle the question once and for all.
The court ruled in the drunk driving case of Todd Trahan, who was stopped in October 2012 by a Ramsey County sheriff’s deputy for driving erratically. He smelled of alcohol and had difficulty standing up. He also didn’t have a valid driver’s license; his had been suspended for drunk driving.
Trahan refused to take a blood test, so he was charged under the state’s implied consent law, which requires drivers to submit to DUI blood and urine tests or be charged with a more serious crime — refusing.
In a plea bargain deal, Trahan was given a five-year prison term for the refusal. Today, the Court of Appeals overturned the conviction, ruling that the law as applied in the case is unconstitutional.
Earlier this year, on a 4-to-3 vote, the Minnesota Supreme Court upheld the constitutionality of a warrantless breath test for DUI, but it limited its ruling to breath tests, not blood tests. That case may well end up at the U.S. Supreme Court.
The appeals court previously had upheld the constitutionality of Trahan’s warrantless blood draw. But the Supreme Court sent the appeal back for reconsideration, which appeared to invite the test case on the reach of Minnesota’s implied consent law.
“Blood draws are serious intrusions into the human body that implicate a person’s ‘most personal and deep-rooted expectations of privacy,'” Judge Jill Flaskamp Halbrooks wrote in today’s opinion from a divided Court of Appeals (pdf). “Unlike breath, blood does not naturally and regularly exit the body.”
While the Supreme Court has allowed some exceptions to requiring a warrant to draw blood, concern alone that delaying a test could allow alcohol in the blood to dissipate isn’t one of them, she said.
“Trahan’s lack of cooperation throughout the process, while understandably frustrating to police, simply did not create an exigency,” she wrote.
In short, the police could have — and should have — gotten a warrant.
The judge acknowledged that the state has a compelling interest in ridding the state of drunk drivers — nearly a third of driving deaths in Minnesota involve alcohol — but this sentence in her decision is significant.
We conclude that criminalizing the refusal to submit to a warrantless blood test “relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,” but it is not precisely tailored to serve that compelling state interest. It therefore fails strict-scrutiny review.
There are alternatives, she said, to invading someone’s body without their permission and then criminalizing their refusal to allow it.
But Judge Kevin Ross disagreed.
“The Supreme Court’s recognition that states can constitutionally rely on a driver’s test refusal to convict that driver of the crime of drunk driving implies strongly that, even though a nonconsensual chemical test is a ‘search’ under the Fourth Amendment, due process is not offended when the state criminally punishes test refusal as a crime in itself,” he wrote in his dissent. “This recognizes that the right to refuse testing for drunk driving is different in nature from other rights.
“It is an anomaly in law that the right to refuse chemical testing does not include the right not to be penalized for the refusal, but it is a reasonable anomaly given the unique nature of the underlying crime.”
In an apparent message to the Minnesota Supreme Court, which will likely get the case again, Ross said “I think we should instead decide more specifically whether a suspected impaired-driver’s refusal to submit to chemical testing is itself a fundamental right.”
Ross said requiring police to get a warrant to test a suspected drunk driver will actually remove the choice of suspects to refuse.
After today’s decision, police should never merely request a blood test, because if they do, upon refusal, not only is no test permitted, but also conviction is far less likely.
Every police officer doing her duty to gather evidence to ensure the criminal conviction of apparently drug-impaired drivers has but one remaining course: give the driver no choice; call a judge every time; get a warrant every time; and administer a blood draw if necessary by force, every time.
The state will continue to obtain its evidence to convict and remove impaired drivers from the road, but it will cost the people their significant statutory restraint on police power.
The Minnesota Supreme Court will likely decide that.
“Because we plan to file a petition for review with the Minnesota Supreme Court, the Ramsey County Attorney’s Office will decline comment at this time other than to say that it ‘respectfully disagrees’ with the decision made by the Minnesota Court of Appeals in this case,” according to Dennis Gerhardstein, the spokesman for Ramsey County Attorney John Choi.
