Nov 11

Brooks: The End of the Fourth Amendment as We Know It

Tags: , , ,

On October 23, 2013, the Minnesota Supreme Court issued its ruling in State of Minnesota v. Brooks. This is the long-awaited decision that has partially determined how criminal defense attorneys are to deal with the McNeely issue. You can read about the McNeely issue here. McNeely is a U.S. Supreme Court case that said that alcohol disappearing from the bloodstream over time is not a reason, standing alone, that allows police to take a blood/breath/urine sample without a warrant and without consent.

Up until recently, Minnesota court cases have said that alcohol disappearing from the bloodstream over time, alone, is a good enough reason for a chemical test without a warrant and without consent.

Other issues that McNeely has raised in Minnesota are whether the “consent” that drivers give after being read the Implied Consent Advisory is actual consent or if it coerced by the threat of a crime if the driver refuses the test, what happens when the driver refuses the test, and whether the Minnesota Implied Consent Advisory is unconstitutional.

The Brooks case is the Minnesota case asking the courts to apply McNeely to Minnesota cases and law. Criminal defense attorneys across the State of Minnesota have been filing McNeely motions in their DWI cases. Some counties, such as Stearns in St. Cloud, have been granting our motions and suppressing the chemical tests. Other counties, such as Hennepin in Minneapolis, have been denying our motions.

Now, the Minnesota Supreme Court has answered some questions in its 19-page majority opinion. One such answer is that there is no “single-factor exigency,” meaning that police cannot take a warrantless and nonconsensual chemical test based solely on the fact that alcohol disappears from the bloodstream over time. A victory to defense attorneys and drivers. The court also said that when a driver consents to the chemical test after hearing the Implied Consent Advisory, that consent is enough to take the chemical test. A victory to prosecutors and major loss to everyone else. Finally, the court said that the Implied Consent law is constitutional. A victory to prosecutors and major loss to everyone else.

In a 5-page concurrence, one judge argued that the Implied Consent law is unconstitutional, but the tests are admissible because the officers believed the driver’s consent was valid.

These answers do not tell us what to do in every case, but it does take some of the wind out of our McNeely motions. We do not have an argument in the vast majority of DWI cases where drivers “consent” to a chemical test.

However, the court did not address what to do in refusal cases or when other unique facts are present. Brooks may be on its way to the U.S. Supreme Court, so the law is still undecided for now.

See the Brooks opinion here.