Minnesota Supreme Court makes another ruling on implied consent

A couple of weeks ago we wrote about a slight change in the implied consent rule thanks to a new interpretation of the rule by the Minnesota Supreme Court. In a follow-up to that post, this post will look at another decision the Minnesota Supreme Court made in relation to implied consent -- but this time, it has to do with breath tests and an individual who refuses to take one.

Implied consent compels an individual to take a breath test when they are accused of a DUI. As part of your agreement to have a driver's license, you thus "consent" to any breath test that an officer tells you to take. It's part of the privilege of driving. However, there was a significant challenge to this view of implied consent here in Minnesota. Unfortunately, it did not favor those who are accused of drunk driving.

The Minnesota Supreme Court ruled that a breath test does not constitute an unwarranted search and, thus, people do not have the right to refuse such a request by the police. This doesn't change anything, really. It's still the status quo with breath tests.

But this serves as another important reminder about how the criminal system treats DUIs. The rules are very rigid and there is very little leniency with these offenses. If you are accused of driving under the influence of drugs or alcohol, then you need to get an attorney right away to protect your rights and help you with the case.

Source: Albert Lea Tribune, "Minnesota Supreme Court: DWI testing laws are legal," Associated Press, Feb. 12, 2015

Tags: Breath Test Refusal

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Texas Man Allegedly Had Blood Forcibly Drawn without Consent After DUI Arrest

Los Angeles DUI laws are very particular about what can and cannot be used as evidence during a DUI case. The following Texas case depicts what can happen if police officers don’t follow appropriate protocol.

According to news reports, in early January, an allegedly DUI driver, Joel Garcia, slammed into another car after speeding through a red light. The crash killed three people. Garcia’s own injuries were severe enough to warrant pain medication. Police had been afraid that the medications would lead to a false positive for DUI on his blood test, so they withdrew blood without his consent.

Garcia’s lawyer later protested that forcible removal of blood violated his rights. Texas, alongside many other states, allows police officers to engage in certain probing investigative activities without needing warrants following grievous injury or death. Due to Garcia’s alleged actions, three people were dead. The police believed that the seriousness of the situation allowed them to exercise their right to remove his blood for testing.

The U.S. Supreme Court has previously ruled that pressing or exigent circumstances do not provide officers with a reason to forego consent, except under some circumstances. In every case, this “exigency” must be carefully reviewed and validated by the court.

The DUI was not Garcia’s first offense. Police arrested him for another DUI earlier in the year. On the night of the fatal crash, he allegedly had several beers and three shots of spirits before getting in his car.

This case is important for two reasons.

1. Every state law is different. Had Garcia been driving in a different state, he might have had grounds to sue the police department for obtaining his blood without his consent.

2. The attention of an experienced Los Angeles DUI lawyer can be critical.

Designing and executing an effective defense against DUI charges (even simple ones) is not intuitive. Fortunately, you can trust the seasoned, highly successful Michael Kraut. Call a DUI lawyer in Los Angeles with nearly two decades of experience.

Call attorney Michael Kraut at (323) 464-6453 for help if you’ve been stopped for DUI in Los Angeles. Or Contact our team online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

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Implied consent law has new wrinkle thanks to Supreme Court

We've talked about implied consent on this blog before, and what it means for all drivers in the state of Minnesota if they are accused of driving under the influence. However, a recent ruling by the Supreme Court changes the way the rule is interpreted, and it has a profound affect on people who were looking to challenge a certain aspect to the rule.

Remember that implied consent originally meant that any driver thought to be intoxicated by the police inherently consented to having a blood test done. The consent is agreed to as part of the individual obtaining a license.

However, the rule was challenged as it seemed like the police should have to obtain a warrant before going through with such a blood test -- even under implied consent. The police countered by saying that in the time it would take to obtain a warrant for a drunk driver, the individual's alcohol levels would dramatically shift.

The Supreme Court agreed with the people, saying that the police need to obtain a warrant before they are allowed to proceed with a blood test.

So where does that leave people who were arrested and forced to take a blood test prior to this ruling being made? Well, unfortunately, it looks like they are out of luck. The ruling applies now and will not have any retroactive action.

This is a significant and important change to DWI law in Minnesota, and drivers now need to be aware of this if they are accused of drunk driving.

Source: MPR, "MN court rules DUI blood testing proper in past cases," Bob Collins, Jan. 12, 2015

Tags: Blood Alcohol Tests

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Breaking News - Submission Is Not Consent

Posted on January 28, 2015 by Chuck Ramsay We interrupt the consent search blog series currently in progress to bring you breaking news: Minnesota district court judges are finally finding that submission to lawful authority is not consent. Relying on the 8th Circuit’s 2004 and 2005 decisions in U.S. v. Gray and U.S. v. Sanders, at least two brave judges are resuscitating the Fourth Amendment by reminding the State that an individual’s consent to a warrantless search may always be withdrawn. Drivers reserve the right to change their minds, and “no” once again means “no.”

Don’t break out the champagne yet, though. These brave district court judges, and their refreshingly true-to-the-constitution decisions, will likely face reversal on appeal when the Court of Appeals finds consent under its interpretation of State v. Brooks. We’re still looking, but we have yet to find a single DWI test coercion case the Court of Appeals couldn’t convert to consent.

So, what is the take-away? Lawyers need to understand the critical legal distinction between submission and consent so that they can effectively counsel drivers about their constitutional rights. In State v. Hoven, the Minnesota Supreme Court noted, as did the federal court in Gray and Sanders, that an individual may withdraw consent to a warrantless search.

In the DWI context, drivers have the constitutional right to see a warrant before law enforcement obtain a blood, breath, or urine sample. According to the courts, drivers should be able to withdraw their consent to a warrantless search by expressing their intent to withdraw consent with an unequivocal act or statement (I’ll give an example of what that looks like in a minute). Once a driver withdraws his or her consent, the driver may then submit to the warrantless test law enforcement tells them they are “required by law” to take … because submitting to that test is not the same thing as consenting to it.  Without valid consent – or one of the other judicially-crafted exceptions to the constitution – the results of a warrantless test must be suppressed.

Attorneys cannot ethically or legally counsel a client to commit the crime of test refusal, but attorneys must inform clients that an unequivocal withdrawal of consent by word or action is a constitutional right. While this isn’t legal advice, something like this oughtta do it: “I withdraw my implied consent to a warrantless search and I do not freely and voluntarily consent to the warrantless test of my blood, breath, or urine. I am submitting to a chemical test only because I am required to do so by law, and I am acquiescing to a claim of lawful authority. I do not consent.”

Stay tuned for the next installment in the consent search series: The Evolution of the Consent Search Doctrine.

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The Evolution of the Consent Search Doctrine

Posted on February 6, 2015 by Chuck Ramsay

Series: The Evolution of the Consent Search Doctrine

As we mentioned in our previous post in this series, the consent search exception to the Fourth Amendment warrant requirement is a relatively recent, judicially-crafted doctrine. Tracing its evolution—or should I say, devolution—reveals a gradual but steady shift away from actual consent (as the right of every individual) toward “consent” as “any cooperation with law enforcement in the absence of extreme and obvious coercion.”The consent search exception has devolved into a law enforcement tool used liberally and intentionally by the authorities to pressure or trick individuals into doing what they are told. 

Our decisions in this case and in [State v.] Dezso represent what I believe will be an ongoing attempt to come to grips with the increasing use by state troopers and police officers of subtle tactics to get motorists and others to “consent” to searches. It appears state troopers and police officers are receiving training on getting “consent” to search, similar to the training sales people receive in getting people to agree to buy things they do not want. One technique is to ask the defendant a question along the following lines: “You wouldn't mind if I looked in the truck, would you?” If the person says “no,” the officer searches. Consumer protection laws provide some protection to consumers who, as a result of sales pitches from sales people, “consent” to purchase products they do not want. We are not dealing with vacuum cleaners in this case but with the liberty and privacy interests of all the people of the State of Minnesota, and we have an obligation to ourselves and to the Constitution of this State to do what we can, in our limited role as a court of last resort, to provide reasonable protection to those interests.

Justice Tomljanovich’s foresight was 20/20. In the year and a half since the Minnesota Supreme Court’s ruling in State v. Brooks, the legitimacy of the consent search exception—at least in the DWI context—has been eviscerated. We have been unable to find a single case where the Court of Appeals affirmed the District Court’s finding of coercion in the DWI context. Not when the driver told the officer he did not consent, and not even when an individual had been attacked by police dogs just prior to allegedly giving consent. Equally distressing is the recent attempt by the Minnesota Court of Appeals, in State v. Bernard, to revive the long dead “hypothetical warrant doctrine,” which essentially nullifies the Fourth Amendment warrant requirement by cutting out the pre-search review of probable cause by a neutral magistrate.How did we get here? Historically, Minnesota courts have construed the consent search exception to the warrant requirement more narrowly than the United States Supreme Court. In cases decided in 1969 (State v. Mitchell), 1970 (State v. High), and 1999 (State v. Harris) , the Minnesota Supreme Court found that just the arrest—and even a pre-arrest seizure—of a suspect pretty much ruled out any “free and voluntary consent.” Their logic was simple and direct: once law enforcement has asserted its authority over you, law enforcement has authority over you. They have guns, tazers, chemical spray, retractable batons, and the training in how to use them; you have the duty to obey, to let them order you around, take your shoes and wallet, and lock your hands behind your back. The imbalance of power is inherently coercive, and it is the court’s duty to protect individuals from abuse of government power. Decades worth of Minnesota judges enforcing the protections of the Fourth Amendment didn’t just happen in a vacuum. The Court’s decisions in Mitchell and High came in the wake of the federal government’s 1967 mandate that all states implement an implied consent law. Imagine the justices’ jaws dropping; what could be more ridiculous than finding that an individual gave free and voluntary consent when that “consent” was created by the legislature and automatically given when the individual got behind the wheel? Again, lest some take offense, the Court said it best in 1976, in Prideaux v. Dept. of Public Safety: 

The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense.

Those scare quotes around the word “consenting?” Those were added by the Supreme Court . . . the same Supreme Court that, approximately 37 years later, decided that the “obvious and intended effect of the implied-consent law” is to “make it clear to drivers that they have a choice as to whether to submit to testing.” That’s quite a turnaround.So, we’ve seen the concept of “consent” evolve slowly over the course of decades, before seeing a sudden, radical redefinition of the concept in 2013. Before Brooks, putting a suspect in handcuffs was often enough to render any consent involuntary, and reading a driver the Implied Consent Advisory was “obviously coercive.” After Brooks, neither of those factors appear to matter.So what does matter? We’ll discuss that in the next post, when we analyze Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks. Trackbacks (0) Links to blogs that reference this article Trackback URL
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Series: Consent as an Exception to the Fourth Amendment

Posted on January 20, 2015 by Chuck Ramsay

Nearly two years ago, the United States Supreme Court held in Missouri v. McNeely that police must obtain a search warrant in most DWI alcohol test cases because the dissipation of alcohol in the body is not enough to make an exception to the warrant requirement. Last year, in State v. Brooks, the Minnesota Supreme Court relied on a judicially-crafted exception to the warrant requirement when it held that police in Minnesota do not need to obtain a search warrant when a driver “freely and voluntarily” consents to a DWI alcohol test (and yes, every type of DWI test, whether it's by blood, breath, or urine, is most definitely a constitutionally protected search). 

At first glance, the concept of consent – you ask me for permission and I say yes or no – seems simple and straightforward. Through the looking glass of the legal system, however, consent is complicated. In the world of DWI chemical testing, consent has become one of Minnesota’s most litigated issues, both at the district court level, in the appellate courts . . . and even in federal court.

The approach of Minnesota's courts towards this issue of "consent" arises from the blurring of two concepts: consent and submission. Under current Minnesota law, submission can be legally compelled; submission to DWI testing is required by law and refusal to submit is a crime. Consent, on the other hand, must be intentional, free, and voluntary, and cannot be coerced or compelled by law. By definition, consent to search is the free and voluntary waiver of the fundamental constitutional right to be free from warrantless searches. When actual consent to a warrantless search is freely and voluntarily given to law enforcement by an individual, a warrantless search is constitutional. (Even then, though, the individual retains the right to withdraw consent at any time, as well as limit the scope of the consent.)

Consent is the critical issue because without free and voluntary consent, a search – even one the law requires you to submit to – is unconstitutional. When submission is required by law, how do we differentiate consent?

This is the introductory post of our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In our upcoming posts we'll discuss:  

1. The History of the Consent Exception to the Fourth Amendment Warrant Requirement

2. The Evolution of the Consent Search Doctrine 

3. Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks 

4. Consent as a Matter of Law: The Minnesota Court of Appeals and the Consent Exception to the Fourth Amendment

5. The Constitutional Implications of Minnesota’s New Standard for the Consent Exception to the Fourth Amendment

6. The Future of the Consent Search Doctrine

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The History of the Consent Exception to the Fourth Amendment Warrant Requirement

Home > Fourth Amendment > The History of the Consent Exception to the Fourth Amendment Warrant RequirementPosted on January 23, 2015 by Chuck Ramsay

The Constitution didn't come with built-in exceptions; courts have created them. It wasn't until 1921, in Amos v. United States, that the United States Supreme Court first recognized the possibility of a consent exception to the Fourth Amendment Warrant Requirement. It took another 25 years, in Zap v. United States, for the Court to turn the possibility into a reality. Before 1946, you couldn't waive your right to a warrant even if you wanted to; every search had to be authorized by a warrant issued by a neutral magistrate based on probable cause. The writers of our Constitution knew all-too-well the danger posed to personal liberty by unchecked, unilateral action by one branch of government. Hence, the Fourth Amendment Warrant Requirement.

Given our nation’s belief in individual freedom, it makes sense that a warrantless search is reasonable when it is conducted with the permission of the person searched. In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. When police officers ask an individual for consent to search, it reinforces the rule of law for the individual to actually consent (or refuse to consent), and for the police to act in accordance, by executing the consensual search (or getting a warrant). That's why, when the Court created the consent search exception in the 1946 Zap case, the Court relied on actual consent; an individual had to give an intentional, knowing, and voluntary waiver of his or her Fourth Amendment rights before a search would be considered consensual. Only the truly voluntary relinquishment of the right to a warrant could support the constitutionality of a warrantless search.

Actual consent – “Yes, I give you permission to search” or “No, come back with a warrant” – remained the benchmark for about 50 years. Then, in 1973, the Court issued its decision in Schneckloth v. Bustamonte. In that case, the Court developed a new approach to the consent search doctrine by shifting the criteria for consent from actual, express consent given freely and intentionally, to "consent" as determined by the court's application of a “voluntariness” test to "the totality of the circumstances."

The significance of this shift cannot be overstated; after Bustamonte, actual, express consent (or refusal to consent) was no longer determinative. Even when there was no actual, express consent, the courts began to find "consent" by asking not whether an individual consented, but rather whether a reasonable officer would have construed the individual's actions as consent. As of 1976, courts could find "consent" as a matter of law even when there was no actual, express, voluntary consent as a matter of fact.

In Bustamonte, the Court separated consent search analysis from the original characteristics that made consent searches reasonable. Instead of focusing on the individual’s actual consent to forego a constitutional protection as the basis for the doctrine, the Court emphasized the balance between law enforcement officials’ interest in conducting searches and the private citizen’s fear of coercion. This new focus on law enforcement interests moved the doctrine of the consent search exception away from an objective standard, which focused on a particular person’s actual waiver of his or her constitutional right, to a subjective standard, which assessed whether a law enforcement officer’s actions coerced the suspect into permitting a warrantless search. "Consent" was determined by the one asking for it, not the one giving it.

Law enforcement has no complaints about this shift, but for individuals, the consent search situation has only gone downhill since Bustamonte. Subsequent court decisions have further distanced the consent search exception from its original justification by shifting the focus of consent analysis entirely away from the objective, actual manifestation of an individual’s consent to the court's interpretation of the facts from the officer’s perspective in the absence of express consent. In a recent case here in Minnesota, the Court of Appeals found free and voluntary consent from a 21-year veteran of our U.S. Navy, even when the veteran told the officer who arrested him “I guess I will take your test, but I am not consenting.” This approach goes far beyond cases that have come before, and appears to be ushering in a new consent calculation: submission to a search automatically equals consent to that search.

This plays out in a dangerous way in the context of warrantless DWI searches: the Minnesota Implied Consent Advisory says "Minnesota law requires you to submit to a chemical test" and "refusal to submit is a crime." The Advisory doesn't mention the fact that if a driver refuses, no test will be performed against his will. And law enforcement is not required to clarify that a driver can (and must) submit to a warrantless search to obey the law without giving free and voluntary consent to that warrantless search.

What if the Implied Consent Advisory said "Minnesota law requires you to submit to a haircut" and "refusing to submit to a haircut is a crime"? You'd submit to the haircut to avoid the crime, even if you didn't want a haircut, right? You might even say, "I’ll submit to this haircut because it's the only way I can avoid committing a crime, but I am not consenting to this haircut.” And it logically follows that you'd refuse to submit to a haircut if you could do so without committing a crime. Well, according to Minnesota law, in that situation you freely and voluntarily consented to the haircut.

Keep checking back - up next in this six part series we'll explore the continuing evolution of the "consent search" doctrine.

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Going Federal On Implied Consent

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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Brooks-Style Consent: Valid Forevermore? A Dissenting Opinion Suggests Otherwise.

Home > Fourth Amendment > Brooks-Style Consent: Valid Forevermore? A Dissenting Opinion Suggests Otherwise.Posted on November 7, 2014 by Jud Nichols It’s been a year and a half since Missouri v. McNeely and more than a year since State v. Brooks. In that time, the law regarding DWI’s in Minnesota has been all over the map, a roller coaster of dismissed test results and conflicting decisions. Lately, however, we’ve seen a steady stream of decisions from the Court of Appeals, all saying the same thing: everyone who drives in Minnesota is “freely and voluntarily” consenting to warrantless searches of their blood, breath and urine. From a defense standpoint, it’s both surprising and frustrating – surely, not every single driver freely and voluntarily consents to a search, and the fact that in approximately 50 recent decisions our Court of Appeals has universally concluded that the driver “consented” certainly gives the appearance that Minnesota has adopted a new (and automatic) exception to the warrant requirement in Minnesota, replacing the previous automatic exception that was so recently rejected by the United States Supreme Court in McNeely. As prominent Minnesota attorney Joe Friedberg, who was quoted in the Star Tribune on Monday, said, “The appellate courts have shown little or no respect for the McNeely holding...they’ve adopted the philosophy that the case only applies in Missouri and to McNeely.”

Yet this week we saw a glimmer of Appellate Fourth Amendment light shining down through the cloud of warrantless stagnancy. A Minnesota Court of Appeals decision (linked here) contained a dissent from the Chief Judge himself that came out and said what Ramsay Law Firm has been saying for over a decade (*see this Star Tribune article co-written by Chuck Ramsay from January, 2006): if there is any doubt, law enforcement should get a warrant in DWI cases instead of hoping to prove “consent” after-the-fact.

In another decision, the Chief Judge also noted that law enforcement had best begin obtaining warrants, making it clear that “the message to law enforcement should be that a warrant is always required under the Fourth Amendment, except in emergency situations where exigent circumstances exist.” In that case, the Chief Judge agreed with the ultimate decision that a warrant was unnecessary, but felt compelled to send a specific message to everyone involved in DWI enforcement: start getting warrants instead of relying on exceptions in every single DWI arrest.

These two dissents stand out from the rest of the cases decided this week (and in the last year), in part because our Courts are still struggling with the idea of “consent” in DWI cases, where many drivers (especially drivers who have never been arrested before in their lives) are scared, intimidated, confused . . . and possibly impaired. For these people, spirited away to jail in handcuffs, the Minnesota Implied Consent Advisory (read by the officer that just arrested them) is incredibly confusing and inconsistent: a driver is told that they are “required” by Minnesota law to take a test, and then later casually told that they have a limited amount of time to make a “decision.” “Required” is, of course, a word designed to eliminate the concept of choice, while “decision” at least makes it sound like there is a real choice involved. To most, however, it sounds like a clear-cut ultimatum – not a “choice”—which is the crux of the battle that continues in Minnesota’s appellate courts. 

Perhaps today, in light of these two recent opinions, we are witnessing the first sliver of change in the Court of Appeals’ attitude towards Brooks-type consent. We have to ask: Is this the moment where the pendulum begins swinging back? 

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Nevada Supreme Court Holds State's Implied Consent Statute Unconstitutional

Home > Fourth Amendment > Nevada Supreme Court Holds State's Implied Consent Statute UnconstitutionalPosted on October 17, 2014 by Jud Nichols

Another state in our union has joined the bandwagon of those requiring warrants in DWI cases.

In a unanimous decision, the Nevada Supreme Court held that, in light of Missouri v. McNeely, there was no basis for warrantless searches of drivers’ blood, as allowed per Nevada's now-unconstitutional statute.

Interestingly, a spokesperson for a Nevada Police Department stated that it won’t affect the state’s day-to-day operations! How is this possible?

Well, unlike Minnesota, Nevada changed its policies shortly after McNeely, and started obtaining warrants.   

Also unlike Minnesota, as a Nevada attorney explained, this decision means a couple important changes in the law: first, now police are going to have to go get a warrant or get true knowing and voluntary consent (as is not fully clarified in Minnesota DWI law), and second, a person can say, “no, I’m not taking your test” (something that cannot be said in our state without being charged with refusal).  

This decision is more evidence of a trend in our county to require warrants in DWI cases, rather than relying on an exception to the warrant requirement, such as "consent," as is being done in Minnesota.

Will our state jump on board soon? We're doing our best to expedite this possibility. 

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