Supreme Court: DWI test rule retroactive

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The “Birchfield rule” enunciated by the U.S. Supreme Court in 2016 said that it is not necessarily a crime for a driver to refuse a warrantless blood or urine test for controlled substances. The Minnesota Supreme Court adopted that rule in State v. Trahan and State v. Thompson that same year.

Last week, the court determined that Birchfield v. North Dakota established a new substantive rule of law with retroactive application.

The opinion raises the specter of opening up hundreds of test refusal cases and considering each one individually, but that does not mean the rule can’t be retroactive, the court said. The case-by-case requirement does not transform a substantive rule into a procedural one, the court said in Johnson v. State, a unanimous opinion written by Chief Justice Lorie Gildea.

Johnson follows by fewer than three months a similar ruling in North Dakota. North Dakota, like Minnesota, said that the rule is substantive because it alters the range of conduct that the law punishes. That case, Morel v. North Dakota, was issued the same day Johnson was argued.

“What a case,” said DWI defense attorney Charles Ramsay, who was not involved in the matter. He said that estimates are that there are about 1,300 test refusals per year, but those are not broken down into blood, breath or urine tests. But it’s reasonable to assume that there are hundreds or blood or urine case each year, he said.

“It’s a sweeping decision because it goes back at least to 1998. Every refusal case for blood and urine must be vacated. The state has no recourse to bring other charges if the statute of limitations has run, so the drivers should have no convictions. People who have this on their record should call an attorney immediately,” Ramsay said.

“People are going to blame Chief Justice Gildea for this, but it is a result of legislative overreach. Legislature should not try to rid the roads of the scourge of drunk driving at the expense of the Constitution,” he continued.

Challenge to subject matter jurisdiction

Johnson’s case is a consolidated appeal arising from two traffic stops. The first was in 2009 and Johnson refused a blood or urine test. He pleaded guilty to first-degree test refusal. He was still on probation when he was stopped in 2014 when he again refused a test since police had no warrant.

In 2016 Johnson filed a petition for postconviction relief arguing that Birchfield, Trahan and Thompson announced a new substantive rule of federal constitutional law that was retroactive to his convictions on collateral review. The District Court considered the postconviction petition separately, a different judge for each offense. They both concluded the rule was procedural and did not apply retroactively. The Court of Appeals consolidated the cases and affirmed.

The Supreme Court first noted that Birchfield determined that a breath test was a permissible search incident to arrest but a blood test was not. Therefore it was criminal to refuse a test only if the police have a warrant or an exception to the warrant requirement, generally exigent circumstances, applies. Trahan (blood test) and Thompson (urine test) followed.

The court then concluded that Johnson’s guilty plea did not preclude him from arguing that Birchfield is retroactive. It agreed with Johnson that since he was convicted under a statute that was deemed to be unconstitutional as applied, the court had no jurisdiction to accept his guilty plea. Johnson did not forfeit his right to challenge subject-matter jurisdiction by pleading guilty.

The court distinguished the challenge to the court’s jurisdiction from arguments based on Fourth Amendment search and seizure doctrine. Those claims properly would have been denied in a postconviction proceeding, Gildea wrote.

Drivers cannot be prosecuted

Retroactivity is decided under the standard enunciated in Teague v. Lane, a 1989 U.S. Supreme Court case. The first step in Teague analysis is determining whether the rule is new, and the parties agreed that it is.

A new rule may be applied retroactively if it is substantive, not procedural, or is a “watershed” rule of criminal procedure. The parties did not discuss whether it is a watershed rule.

The state argued that the rule is procedural, controlling only police conduct, refining the scope of searches permissible under the Fourth Amendment and leaving no private conduct categorically beyond the scope of the test refusal statute.

Johnson argued that Birchfield is a substantive rule because it changed the elements of the crime of test refusal and narrowed the scope of the test-refusal statute, effectively creating a class of people constitutionally immune from punishment.

The court said the rule is substantive. “The Birchfield rule does not merely regulate the manner in which a defendant is determined to be guilty or not guilty. The rule instead changes who can be prosecuted for test refusal,” Gildea wrote.

“Because of the Birchfield rule, those drivers who refuse to submit to warrantless blood or urine tests cannot be prosecuted unless the State proves that an exception to the warrant requirement applies. If no exception is proved, these drivers are then beyond the power of the State to punish,” the court continued.

The court rejected the state’s argument that the rule merely modified police conduct, or the procedure involved with obtaining a test sample.

Focusing on a procedural aspect of a substantive rule conflates a procedural requirement that carries out the substantive rule with a rule that regulates only the manner of determining culpability, the court said. “[T]he rule does not regulate the manner of determining a defendant’s culpability when a person has refused a warrantless blood or urine test and no warrant exception applies; it puts that conduct beyond the power of a court to convict,” Gildea wrote. No procedure could validate the conviction for test refusal because that crime no longer exists, the court explained.

The court rejected the state’s argument that the rule cannot be retroactive when it requires an individual, case-by-case analysis. “Concerns regarding application of the rule…cannot outweigh the demands of justice,” Gildea wrote in a footnote.