Star Tribune Interviews Attorney Dan Koewler To Discuss the State v. Bernard DWI Test Refusal Decision

Home > Fourth Amendment > Star Tribune Interviews Attorney Dan Koewler To Discuss the State v. Bernard DWI Test Refusal DecisionPosted on February 13, 2015 by Chuck Ramsay
In the wake of the Bernard
decision (the Minnesota Supreme Court's latest decision finding Minnesota's DWI Test Refusal Law constitutional, after previous attempts to obtain review of the constitutional issue were rejected by the United States Supreme Court) Ramsay Law Firm has been deluged with requests for our reaction to the decision, and our analysis of what this decision means and how it will potentially be applied in the future.
Ramsay Law Firm's Dan Koewler discussed the case with Fox9 and WCCO Channel 4, and also responded to requests from the Star Tribune and other local print media. Here's an excerpt from the Star Tribune article:

The exception cited by the state Supreme Court that allows police to do a warrantless breath test is legally referred to as a “search incident to a valid arrest exception.” Gildea said that the state high court could not find a single case anywhere in the country prohibiting a breath test under that exception.
Yet the ruling deals only with a breath test and makes only a passing reference to the constitutionality of a blood or urine test for a suspected drunken driver. That may open the door for a driver to demand a warrant before giving a sample, said Dan Koewler, a DWI defense lawyer who submitted a brief in support of Bernard from the Minnesota Society for Criminal Justice. “This is notable, and leaves more questions than answers,” he said.

We've got plenty more to say about the court's reasoning in Bernard
, and we'll be sharing it here. Fasten your seat belts, it's gonna be bumpy ride as Minnesota's legal community adjusts to a radical new interpretation of the United States Constitution.

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Ramsay Law Firm's Dan Koewler Discusses DWI Test Refusal on Fox 9 News

Posted on February 13, 2015 by Chuck Ramsay
The article associated with the interview does a good job of laying out the basic facts of the Bernard case, as well as discussing the legal holding in the case. We'd suggest reading it.
This decision is notable (and surprising) as much for the spirited dissent as for the final decision, and will have a tremendous impact on all future DWI cases. This case marks an important shift towards a new and much looser interpretation of our Constitution's Fourth Amendment, stretching an exception to the warrant requirement originally designed to protect the safety of law enforcement to cover intrusions into the human body.

As always, expect much more litigation in the aftermath of the Bernard
decision, including a high likelihood of this case (or at least the issue presented in this case) arriving on the doorstep of the United States Supreme Court in the near future.

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State of Minnesota's DWI Test Refusal Law In Flux

Posted on May 7, 2014 by Dan Koewler

Things are getting even more interesting when it comes to Minnesota's DWI Test Refusal law. Apparently even the State's own prosecutors are troubled by the recent decision finding Minnesota's DWI Test Refusal Law constitutional, and they're asking the Minnesota Supreme Court to review it.

If you need some quick history: even before the United States Supreme Court issued its decision in Missouri v. McNeely, we explained how the decision could end up eliminating Minnesota's attempt to make refusal a crime. When the decision finally arrived, we immediately wondered if Minnesota's test refusal law was now unconstitutional. It was a good question, and it wasn't long until Minnesota judges began throwing out DWI refusal charges as unconstitutional.

Then, the Minnesota Court of Appeals issued its decision in State v. Bernard, crafting a new "inevitable warrant" doctrine and upholding the constitutionality of the test refusal law. At least one judge refused to follow the Bernard decision, pointing out how it directly contradicted numerous other Supreme Court cases.

Which brings us to today: After the attorney in the Bernard case asked the Minnesota Supreme Court to review (and overturn) the decision in Bernard, the State of Minnesota was given an opportunity to respond. On Tuesday, they did file their response . . . and nobody was more surprised than us when we discovered that the State is joining in the defense's request for review of the Bernard decision.

This makes it far, far more likely that the Bernard decision is going to see careful scrutiny from the Minnesota Supreme Court - all of the parties are in agreement that it needs to be looked at again. One thing is almost certain: we have not yet received that final word on whether or not charging someone with a crime for nothing more than refusing to submit to a warrantless search is actually constitutional.

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Another Shot Fired Over the Constitutionality of Minnesota's DWI Test Refusal Law

Home > Fourth Amendment > Another Shot Fired Over the Constitutionality of Minnesota's DWI Test Refusal LawPosted on May 19, 2014 by Dan Koewler

Minnesota is one of very few states that make it a crime to refuse to submit to a DWI test - the vast majority of states simply impose a longer license revocation against drivers who refuse. Minnesota's rare and troubling practice - making refusal to submit to a warrantless search an independent crime - appears to be unconstitutional. That appearance is causing a major conflict between defense attorneys and prosecutors, between prosecutors and cops . . . and also between Minnesota judges and other Minnesota judges.

Is it constitutional to put someone in jail for refusing to submit to a warrantless search and seizure? This is the question that has plagued Minnesota courts for over a decade, and it is a question that is quickly coming to a head. The Minnesota Supreme Court is in a position to answer that question once and for all later this year.

But in the meantime, Minnesota's DWI law is in a state of pure turmoil. In the past year, many district court judges around the state have concluded that the crime of test refusal is unconstitutional. After judges started declaring the law unconstitutional, the Minnesota Court of Appeals stepped in and in the case of State v. Bernard, crafted a brand-new doctrine that appeared to make the crime of test refusal legal. This Bernard decision was famously ignored by at least one judge who was completely unpersuaded by the newly crafted "inevitable warrant" doctrine.

Today, the Court of Appeals issued another decision finding the test refusal law constitutional, in the unpublished case of State v. Mawolo. And while it was completely expected for the Court of Appeals to follow the logic of the recently issued Bernard case, what was completely unexpected was to see another judge step up and proclaim, in effect, "we are getting this wrong, and we need to fix it before it's too late."

That is a paraphrase from the dissent in the Mawolo case, where one member of the three judge panel made it clear that "the analysis in Bernard" was "flawed" because it "creates an exception that renders the Fourth Amendment meaningless . . ." I highly suggest reading the whole dissent - it is both scholarly and very much to-the-point.

This likely will not be the last judge to openly defy the holding in the Bernard decision, and with every new voice in opposition, the constitutional crises in Minnesota deepens.

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