After years of challenges from defense attorneys in Minnesota, the Minnesota Court of Appeals has finally acknowledged that a search warrant was needed for a DWI blood test request, and the driver’s refusal to submit to that test in the absence of a warrant cannot be a criminal offense. This decision is extremely important, but is limited in its scope. First of all, the decision applies ONLY to blood tests directly. The Minnesota Supreme Court held last year that a warrant was not needed for DWI breath test requests, which means the refusal to take a breath test can still be a crime. (That decision is awaiting possible review by the U.S. Supreme Court.) As for urine tests, that is an unanswered question at this point.
More than ever, it is critical that anyone who has been arrested for DWI seek legal advice prior to making the decision about taking the test for the officer. The DWI Guys are available 24 hours, 7 days a week for free testing advice at 1-800-DWI-GUYS. The law is drastically different depending on the type of test being asked for by the officer. We suspect that officers will be instructed to offer breath tests only whenever possible, which they already do in the vast majority of cases.
This new decision also calls into question whether the current Implied Consent Advisory form violates due process by advising all drivers that “refusal to take a test is a crime.” This Advisory must be read to a DWI offender before the officer requests an official alcohol concentration test at the police station/jail. An argument can now be made that the Advisory gives bad advice to individuals who are eventually asked to take a blood test without the officer obtaining a search warrant first. Again, this applies to a small percentage of DWI offenses because most officers request breath tests, but it is a step in the right direction when it comes to preserving individual rights.