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Case may decide whether police must obtain search warrants for blood alcohol tests.

‘Brooks’ will get expedited review

State v. Brooks is headed for the Minnesota Supreme Court on an accelerated schedule, bypassing a hearing at the Court of Appeals.

 Brooks is Minnesota’s State v. McNeely.  In McNeely, the U.S. Supreme Court ruled that search warrants are required in some DWI cases before a blood alcohol sample is taken without consent, and that the dissipation of alcohol in the blood is not in and of itself an exigency that obviates the need for a warrant. In Brooks, which is actually the consolidation of three cases, the Court of Appeals originally said in 2012 that the single-factor exigency permitted warrantless tests.  Brooks went up to the U.S. Supreme Court which promptly sent it back down with instructions to reconsider in light of McNeely.

 The parties will submit the same briefs that were submitted to the Court of Appeals and oral arguments will then be settled.  The respondent’s brief is due July 31.

 Many will greet the accelerated review with enthusiasm.  Word is that some district courts are delaying cases in hopes of getting more guidance on McNeely.  And McNeely doesn’t apply if the person consents.  Look for arguments over consent, especially given Minnesota’s punishment for test refusal.  If it’s a crime to refuse, what is consent?

About Barbara L. Jones


  1. Of course, as the author states, there logically may not be and cannot be consent if refusal to consent is a crime for which you can be jailed for up to a year!


    Oversimplification of the issue, in my opinion. The crime is refusal to test, not refusal to consent. Consent is implied when you initially choose to drive an automobile in Minnesota and there is subsequent probable cause to support an arrest for DWI. There are a myriad of issues and opinions here, as seen by the conflicting district court orders.

  3. In fact, it is not an over-simplification. No one consents to anything by driving: that is just what the courts claim bec that’s what the IC Statute says: That is absurd. ( The Legislature can’t legislate away our Fourth Amendment rights. )
    If that were the law that people consent to testing by driving, then Mr. McNeely would have lost, as he would have consented to a test by driving in Missouri and his “refusal” at the time the search/test was requested would be meaningless. Since he won, that means all drivers have a right under the Fourth Amendment to refuse a warrantless search (of their blood, their, breath, their *house*, whatever) unless Exigent Circumstances or another exception to the warrant requirement is present. The Supreme Court has already told us that the MN S.Ct. was wrong in Shriner and Netland and that exigent circumstances do not exist in the run of the mill DWI w/no accident and no injuries.

  4. I have to agree with Max. You are correct in that, In State v. Wiseman, our Court held that there is no crime of refusal-to-consent, but rather refusal to submit to a test/search you had no right to say no to in the first place. That court wrote that the advisory is not even designed to garner consent. It is only to inform one of that legal fact. After McNeely that legal fact is wrong! The 47-year-old foundation stone that supports the entire implied consent scheme crumbled. It was always assumed the State was giving up its power to do warrantless seaches in EVERY DWI, and gracing us with a power to refuse, but that refusal could then be made criminal. Justice Sotomayor wrote that there is nothing about a run-of-the-mill DWI that excepts it from the traditional 4th Amendment test, which is warrantless searches are per se unreasonable unless the State proves a jealously guarded exception. Consent is a red herring by Wiseman alone. The 47-year-old mistake renders nearly all DWI searches unconstitutional while MN has a refusal crime in place. The intrusiveness of blood and needles is a red herring to. The test as to what is garden varierty is the presence of exigency or not. If, not, get a warrant. We can enforce DWIs without a warrant when we repeal the refusal crime.


    A message was posted last week in response to the “Brooks” article that identified the poster as, the email name/address I provided when setting up our county law library’s account with MinnLawyer. The message was sent not sent by me but by a library user. My apology for the conflusion.

  6. It has been an interesting few months defending DWI’s since McNeeley. I know of no Minnesota jurisdiction that has begun obtaining warrants for blood, breath or urine. In the courtroom, Ramsey County has and is continuing all challenged cases until November 20 or later. Dakota is taking a different tact, ceding the evidence under McNeeley and dismissing all charges that require a test, then offering or pushing for a punishment equal to or greater than the statutory GM DWI on the lesser included misdemeanor DUI (which requires no test for conviction). The policy of Dakota may become the norm statewide until the Legislature can react, likely to take 2 years.

  7. Roger: Very interesting post. Dakota County is not ceding anything in my experience. Who told you that, or what prosecuting authority were you dealing with and what prosecutor? Feel free to email me off-line at Thanks.

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