January 20, 2015

Going Federal On Implied Consent

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Posted on January 9, 2015 by Chuck Ramsay

There comes a time when it becomes clear that the persistent and systematic violation of a constitutional right is falling on deaf ears in state courts. Here in Minnesota, in case after case, the fundamental constitutional right to be protected from warrantless invasions of bodily integrity – your right to refuse to give your breath, blood, or urine when there is no search warrant -- is being flagrantly violated by police during DWI investigations, and the courts are doing nothing about it. When that time comes, as it certainly has, the only remaining option is going federal.

Today, on behalf of a client, we filed a petition for a writ of habeas corpus in federal court. We put together evidence of our state courts’ failure to uphold the Constitution, and we are asking the federal court to step in to protect our rights. Minnesota courts have left us with no other choice. Since January 2014, in the aftermath of the Minnesota Supreme Court’s decision in State v. Brooks, the Minnesota Court of Appeals has decided at least 70 appeals from district court cases dealing specifically with the issue of consent in the context of DWI. In every single one of those 70+ cases, the court concluded that the driver freely and voluntarily consented to a custodial, warrantless search. In one case, Bathen v. Comm’r of Pub. Safety, the Court of Appeals found that a driver “freely and voluntarily consented” to an in-custody, warrantless search after law enforcement sicced a police dog on him, and one officer punched him in the head while another officer threw punches below the waist.

In at least 24 cases, under an astounding array of factual scenarios, the Court of Appeals upheld the district court’s conclusion that a driver’s consent was free and voluntary. Far more alarming is the fact that in one year the Court of Appeals unanimously reversed district courts’ determinations that consent was coerced and was not free and voluntary in at least 43 cases. In 2014, district court judges found coercion almost twice as often as they found consent, and yet the Court of Appeals reversed every single district court judge who found that, under the totality of the circumstances, a driver was coerced into consenting. The situation is so dire that the Court of Appeals has taken to dismissing the lack of consent in the majority of cases by concluding that drivers are “consenting” to the execution of warrantless searches “as a matter of law.”

Anyone with a dictionary, an eighth grade education, and a speck of common sense knows that it is impossible to give free and voluntary consent – or free and voluntary anything - as a matter of law. If some act is required by law, your willingness to perform that act is irrelevant; you have to do it whether you want to or not. Here, the Court of Appeals sees no problem with a law that makes it a crime not to consent to a warrantless search.

The decision to file a petition for a writ of habeas corpus in federal court is a significant one. The Minnesota Court of Appeals’ clear endorsement of an unconstitutional law calls for significant action. The time has come to call on the federal courts to end this injustice and reinstate the Fourth Amendment protections of the Constitution in Minnesota.

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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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