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David Bernstein, right, chair of Minnesota’s DWI Task Force, states his case before the Senate Judiciary committee on May 12 while the committee’s chair, Sen. Warren Limmer, R-Maple Grove, listens. (Staff photo: Kevin Featherly)
David Bernstein, right, chair of Minnesota’s DWI Task Force, states his case before the Senate Judiciary committee on May 12 while the committee’s chair, Sen. Warren Limmer, R-Maple Grove, listens. (Staff photo: Kevin Featherly)

Lawmakers consider DWI suspects’ right to counsel

The Legislature is now considering a new DWI/license revocation statute for the post-Birchfield era, where search warrants are required for blood or urine tests.

Drivers ordered by a judge to undergo a blood or urine test on suspicion of driving under the influence would first have to be advised of their right to counsel, if a bill passed by a Senate committee last week becomes law.

Senate File 2375 was authored by Sen. Warren Limmer, R-Maple Grove, chair of the Senate Judiciary and Public Safety Finance and Policy Committee, which passed the bill on May 12.

Limmer said his bill was prompted by the U.S. Supreme Court’s Birchfield v. North Dakota case decided last June. There the court ruled that conducting blood or urine tests without a search warrant is unconstitutional. The same ruling affirmed that breath tests without a warrant are permissible.

Much of the May 12 committee debate pivoted on whether law officers must advise suspects of their right to counsel before they take court-ordered blood tests. The bill as passed requires officers to offer that advisory.

Is refusal an option?

David Bernstein, chair of Minnesota’s DWI Task Force, said his organization backs the bill but strongly opposes the advisory. The group, which historically has pushed for tougher DWI laws, assembled a version of the bill that was rolled into the Public Safety omnibus bill earlier this session.

However, Limmer said there was too much confusion among conference committee members about its provisions, prompting him to pull its language out of that committee’s report for consideration as a stand-alone bill.

Bernstein said a key motivation for the bill was avoiding situations where defendants refuse mandated blood tests only to have their blood forcibly drawn by police or medical personnel.

Under the bill, Bernstein said, if someone refuses to comply with a mandated blood test, the test would not be administered. Instead, the suspect would be charged with defying the judge’s order.

Sen. Ron Latz, DFL-St. Louis Park, an attorney, pointed out that since forcible blood draws won’t happen, suspects effectively have an option to defy the warrant.

That, Latz said, puts court-ordered tests on roughly the same plane as breath tests, which are only administered after officers ask if suspects will comply. Those suspects are then given an option to consult counsel before taking the breath test.

Since a choice must be made, Latz said, the same standard should apply to judicially ordered blood or urine tests. “If they have the legal option to refuse,” Latz said, “it seems to me that the right to counsel attaches.”

Bernstein denied that such a “legal option” exists. He noted that the right to counsel does not apply to search warrants granted during other criminal investigations. It would be wrong to carve out a DWI exception, he said.

“Anytime law enforcement gets a search warrant, they execute that search warrant and that is the end of it,” Bernstein said.

Latz countered that without an attorney’s input, first-time DWI suspects are in danger of making avoidably life-altering decision to refuse a judge’s order, which an attorney would almost certainly advise the client to take.

First-time DWI suspects with low levels of alcohol or trace amounts of drugs in their system get charged with simple misdemeanors, Latz said. Refusal to comply with a court-ordered test, on the other hand, is a gross misdemeanor crime that carries up to a year in jail, he said.

Sen. Jerry Relph, R-St. Cloud, a former St. Charles city attorney, was concerned that the consequences could actually be worse than that.

“This would also open them up to a separate crime and prosecution for contempt of court,” Relph said. “That can carry some pretty severe consequences—depending on the demeanor of the judge at the time.”

Bernstein offered a compromise. The task force would support requiring officers to advise suspects that a blood or urine test is court-ordered and refusal to comply is a crime. But it would not support a formal advisory requiring officers to tell suspects of their right to counsel, he said.

“There shouldn’t be any additional responsibility for law enforcement,” he said. “And the right to counsel is not proscribed constitutionally.”

Sen. Dan Schoen, DFL-St. Louis Park, a police officer, offered an amendment to delete the advisory requirement, but withdrew it when Limmer expressed opposition to breaking up the bill’s language.

As passed, the bill requires that suspects be informed of their right to consult an attorney, but only if that does not unreasonably delay a blood or urine test.

Affirmative defense

Another key provision in the bill would change implied consent law when Schedule I or II drugs get detected in a suspect’s bloodstream.

Under current DWI criminal law, defendants have an affirmative defense available when drugs are detected in their bodies. Suspects able to demonstrate that the drugs were taken by prescription and did not impair their driving might be found innocent in a DWI criminal case, for instance.

No such defense is available under civil license revocation law.

Latz said that the dissonance between the two areas of law means that some defendants are found innocent in criminal court but still lose their driver’s licenses. Worse, civil license revocations are an “enhanceable entry” on the defendant’s record, he added, meaning future violations can lead to harsher penalties.

Sen. Scott Jensen, R-Chaska, offered an amendment to grant that same affirmative defense to clients in civil DWI cases. A physician, Jensen said attention deficit disorder patients are especially at risk under civil law’s zero-tolerance policy, because prescribed medications like Ritalin turn up in blood tests as amphetamines.

Jensen admitted that has he seen only five or six such instances in his decades as a physician. But the frequency of such cases is not really the issue, said Sen. Mark Johnson, R-East Grand Forks.

“Regardless of frequency, it seems the unfairness of this situation calls for a change,” Johnson said. “I support Jensen amendment and I think it is a great public policy idea.”

The bill repeals Minn. Stat. sec. 169A.51, subd. 3, which lists the types of blood alcohol content tests available.

After two hours of debate, the committee passed the amended bill by a unanimous voice vote.

Because it was heard after the legislative deadline for bill submissions, the bill was referred to Senate Rules and Administration. That committee was scheduled to hear it Thursday and pass it to the Senate floor, sometime before the session’s May 22 conclusion.

The bill’s companion, House File 2364, was authored by Rep. Tony Cornish, R-Vernon Center, and referred to his Public Safety and Security Policy and Finance Committee. It was not taken up there.

About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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