Eight years ago, the Supreme Court of the United States decided a prominent DWI case that had repercussions on DWI laws across the country, including Minnesota. That case was Missouri v. McNeely. That case determined that a nonconsensual warrantless blood test violates a person’s Fourth Amendment right to be free from unreasonable searches. In its wake, the McNeely decision prompted furious litigation across the country challenging all manner of testing in DWI cases whether breath, blood, or urine.

In Minnesota, one such legal challenge was whether refusing to submit to a warrantless blood or urine test violated a person’s constitutional rights. In Johnson v. Minnesota, the defense took the fight one step further and argued that it should apply retroactively to a case that initiated in 2009. The Minnesota Court of Appeals agreed that it should apply retroactively, but the Minnesota Supreme Court reversed and stated it is only procedural and does not apply retroactively to test-refusal convictions on collateral review.

There was no shortage of attacks on DWI cases in the wake of Missouri v. McNeely. In 2016, the Minnesota Supreme Court decided State v. Trahan. The driver was charged with DWI refusal for refusing to submit to a blood test. The Minnesota Supreme Court decided that a driver cannot be prosecuted for refusing to submit to an unconstitutional warrantless blood test.

In 2016, the Minnesota Supreme Court decided State v. Thompson. This case is almost identical to Trahan except it involved a driver charged with DWI refusal for refusing to submit to a urine test. Similar to Trahan, the Minnesota Supreme Court determined that without a warrant, charging a driver with test refusal of a urine test violates a fundamental right and is unconstitutional as applied to the driver.

In the wake of these cases, Minnesota DWI refusal laws changed. The legislature kept in place refusing to submit to a breath test as a crime. But, added a refusal to submit to a blood or urine test as required by a search warrant as a DWI refusal crime. This requires officers to obtain a warrant for a blood or urine test, if that is the method of testing they wish to administer, in a DWI case. If the driver objects to the blood or urine test, then the officer needs to offer an alternative or have an exception to the warrant requirement.

Johnson v. Minnesota addressed the attempt to go back in time to overturn prior DWI refusal convictions that involved a blood or urine test and did not include a warrant. The Minnesota Supreme Court’s decision determined that McNeely was procedural and does not apply retroactively to convictions. Unfortunately, this puts a damper on what drivers can do who were convicted prior to McNeely, Trahan, Thompson, Birchfield, et. al. But, it does not stop the potential plethora of available legal challenges of blood and urine testing in DWIs.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past six years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is also an adjunct professor at the University of Minnesota Law School. DWI Attorney Woodbury MN; Criminal Defense Attorney Woodbury MN; and DUI Lawyer Minnesota.

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