Monday, April 29, 2013

The McNeely Decision: Completely changing the way MN does DWI cases

Ok so there's tons of stuff going on lately that I could discuss--the entire wtf of the Tsarnev situation (but how about I just tell you to watch the video at the end of this post to hear about the concerning aspects of EVERYTHING ABOUT THAT SITUATION); the whole gay NBA player thing; the White House Correspondents' Dinner...  But instead, I am going to discuss a thing that is more directly impacting my life and that would be the US Supreme Court's decision in Missouri v. McNeely.

So, up until McNeely was just decided, the basic way that a DWI stop/arrest went in MN was something like this: 

1. Officer stops your car for some reason. 
2. Officer asks you to do some field sobriety tests. 
3. You fail field sobriety tests. 
4. You are arrested.
5. You are read something called the MN Motor Vehicle Implied Consent Advisory. This tells you that the officer wants to test your blood, breath or urine to determine if you've been consuming drugs/alcohol; that you can consult an attorney before deciding whether to consent to the test, and that refusing to consent to a test is a crime. 
6. You decide whether to contact an attorney and whether to give a test. 
7. You possibly end up with a DWI if you're over the limit or you get charged with a test refusal if you refuse to consent to the test. 

A few times, people attempted to have their test results thrown out on the basis that their consent to the test was coerced by the fact that they were being threatened with a new, separate crime of failing to consent to a test. The courts in MN have been unmoved by that argument.  The courts had determined that while the evidence obtained by a blood, breath, or urine test is a search under the 4th Amendment, which would normally require a warrant, the fact that alcohol dissipates in a person's system over time creates an exigent circumstance that acts as an exception to the warrant requirement.  Consent is another exception to the warrant requirement.  The courts have reasoned that it doesn't really matter if the consent was coerced or not, since the police could still avoid having to get a warrant based on the exigent circumstances of the alcohol burning off in your system.  Basically, what it came down to was that it didn't matter if your consent was coerced, because you didn't really have the right to refuse in the first place thanks to the implied consent law and  the police don't need your consent, anyway.

So, DWIs were pretty cut and dry.  Did you consent to the test?  Were you over the limit? Yes and yes--let's get you a deal.  Did you refuse the test?  Yes--let's get you a deal.  As long as the basis for the stop of your car was good, that was almost always the situation. 

That is, until McNeely.

McNeely's basic premise is that the mere fact that alcohol dissipates from a person's blood does not, in and of itself, create an exigent circumstance where the police don't have to get a warrant for a test.  The Supreme Court said that in every case, the courts should look at the totality of the circumstances to determine whether there was sufficient exigent circumstances so that it would have been impractical or impossible to obtain a warrant in time.  

This one case has basically taken all of the years of MN case law and tossed it right out the damn window.  For years, our courts in MN have relied on the precedent that the mere fact that alcohol dissipates from a person's blood does, in and of itself, create an exigent circumstance where the police don't have to get a warrant for a test.  We have had MN Supreme Court cases that say as much.  But, all of that case law is no longer good law.  

So, what does that mean for DWI cases in MN? 

It means it's all a clusterf*ck, is what it means.  Several different issues arise now that this well-settled precedent is gone. 

There is now an argument to be made that the law making it a crime to refuse to consent to a test is unconstitutional, and that if the person consents to the test, it wasn't valid consent and the results should be suppressed.  If you have a right to make the police get a warrant to obtain evidence through a search, then how can you possibly be charged with a crime for not consenting to let them search without a warrant?  The analogy to this would be if police informed you that they suspected you of a crime committed inside your house, that they wanted to search your home, that you could consult with a lawyer before deciding to let them in your home, and that if you refused to let them in, then you could be charged with a separate crime based on your refusal.  It's silly when it's phrased that way, but that was the established precedent in MN for many years with regards to DWI cases.  And the courts had determined that people didn't have any argument that the consent was coerced because, hey--the exigency exception would still kick in even without your consent so who cares if you were coerced into consenting or not?!  But, the exigency exception no longer applies, so suddenly, yes, we all do care very much about whether the consent is coerced or not and whether refusing to take the test would be a crime.

So this is a huge win for citizens' right to be free from unreasonable searches/seizures.  But it also means that now, since almost all DWIs are treated the exact same way and have been boiled down to a precise routine (see the list above), we now are likely going to need to raise challenges to the charge of test refusal as well as suppression motions for test results in every single DWI case.  That is going to be a lot of effing work...I'm sure the courts in Minnesota are already bracing themselves for a barrage of defense motions on this subject. 

We're all still brainstorming the best way to approach these and other issues with the DWI and McNeely situation, but suffice it to say that the large volume of DWI cases that up till now have been fairly cut and dry procedurally have just gotten a hell of a lot more complicated for everyone involved. 

I agree with the US Supreme Court's decision in McNeely, make no mistake.  But, it also means I'm going to be very, very busy now...

Now, watch this video: 

1 comment:

  1. IMO: Most of the sobriety tests measure the wrong thing. A better field test would be this

    A failure here would be presumed indicative of intoxication, however a driver could take a voluntary blood test to prove he/she was not intoxicated.

    I would never take any field test. The machines cannot be trusted and only a blood test is reliable.