Wednesday, 23. October 2013
The Minnesota Supreme Court ruled that Wesley Eugene Brooks, the man at the center of the case Minnesota v. Brooks, consented to the warrantless collection of blood and urine samples in the aftermath of three DUI arrests, and therefore, “police do not need a warrant if the subject of the search consents.”
Chief Justice Gildea issued the opinion against Brooks on Tuesday. Chief Justice Stras concurred with the ruling, while Chief Justice Wright took no part in the decision.
Rehashing the Case
To understand the implications of the ruling, one must first learn the circumstances surrounding the case in question. Within a six-month span, Brooks was stopped for driving under the influence on three occasions. In each instance, the officers read Brooks the implied consent law, which states that refusing to submit to a blood, breath or urine test is a crime in and of itself. In each case, Brooks was allowed to consult with his attorney. After consulting with his counsel, Brooks submitted to the officer’s request for a blood, breath or urine sample. In two instances, he provided a urine sample, and in one case, he submitted to a blood test. Each test found that he was over the legal driving limit.
Brooks claims he was coerced into submitting to the test, but the Supreme Court ruled otherwise.
Breaking Down the Ruling
Avery Appelman, a criminal defense attorney in the Twin Cities who has handled hundreds of DUI cases, issued a statement following the ruling.
This is a classic example of the Supreme Court having a predetermined outcome in mind and crafting an opinion to achieve that goal.
Minnesota’s implied consent law is predicated on a few principles, first, that driving privileges are conditioned on the driver consenting to a blood alcohol concentration test at any time law enforcement has probable cause to believe the driver was driving while impaired; second, the driver is told that the law requires them to submit to chemical testing AND that refusing to submit to a test is a crime. When the driver is arrested, taken to a police station, jail or other dimly lit detention facility and advised this, the driver is told they have no choice but to take the test. That is coercive in nature. Take the test and provide evidence against yourself, or don’t take the test and we charge you with another criminal offense. Free choice?
The Supreme Court placed a significant amount of weight to the fact that Brooks was given the opportunity to call a lawyer and did in fact talk to his lawyer prior to making a decision about whether to take a test or not. The Supremes stated: “We have recognized that the ability to consult with counsel about an issue supports the conclusion that a defendant made a voluntary decision.” Well there you go, talking to a lawyer, any lawyer, especially one you select at random, presumably while intoxicated, would lead you to have that meaningful conversation wherein a suspected drunk driver feels comfortable giving up their constitutional rights based on a quick phone consultation in a pressurized environment.
The Supreme Court failed to mention lawyers’ ethical obligations to refrain from advising people to break the law. When the arrested drunk driver makes the pretest call to an attorney, that attorney is legally bound to provide only one piece of advice: “You must submit to an alcohol concentration test.” Why? Because Minnesota law criminalizes refusal to do so. You can see the drunk driver thinking to himself “hmmmmm……did the cop just tell me the same thing? Why did I need to call a lawyer?” To have a meaningful conversation between client and counsel, there must be options, I need to be free to offer advice (here is the situation as I understand it, here is what the law is) and counsel (appreciating your predicament, you have the following options). In the case of the arrested drunk driver, the Minnesota Supreme Court neglects to address the inherent lack of any meaningful conversation, and laughably employs this pretest consultation as a means to bolster their conclusion that a drunk driver’s consultation with “counsel before agreeing to take [a] test reinforces the conclusion that his consent was not illegally coerced.”
The Minnesota Supreme Court continues their faulty reasoning by stating that the reading of the Minnesota Implied Consent Advisory makes it “clear to [arrested drunk drivers] that [they] have a choice of whether to submit to testing.” To this I can only say….no they do not. Arrested drunk drivers have no options. The Supremes are correct when they state the law correctly that if the driver refuses a test, no test shall be given. Great. Why obtain a test when the police will charge the drunk driver with an enhanced DWI as a result of their refusal, which of course the advisory is silent on (for more information, check out a previous post by Geoff Saltzstein). An eight-year-old knows there is no meaningful choice when someone is advised that the law requires you to do something and to do something else is a crime. Yet somehow the Supremes declined to view these facts with common sense and addressed them with a plan to achieve a predetermined result.
I have to give credit to Minnesota Supreme Court Justice Stras in his dissent, err Concurring Opinion. At least Justice Stras has the courage to stand up and say previous precedent was wrongfully decided (Minnesota v. Netland, 762 N.W. W 2d 202 (Minn. 2009) and exclaims that police should obtain a warrant for the search of a suspected drunk driver’s blood and he states “I cannot join the court’s opinion because the particular theory of consent advanced by the court cannot withstand constitutional scrutiny.”
Justice Stras labels Minnesota’s Implied Consent Law “coercive” for its imposition of “criminal liability for test refusal.” Stras states that an arrested drunk driver’s consent could not imaginably be voluntary when he was advised that refusal to consent to a test is a crime. Yes, but the majority disagreed with this logical conclusion. So Justice Stras stands isolated in his logical conclusion.
Today prosecutors will laud the Supreme Court for this faulty holding. Thousands of Minnesota DWI cases have been held at bay pending today’s decision. What will be the result? Many of the cases will proceed with further litigation on whether the drunk driver “consented” to the test based on the totality of the circumstances in their case. What if the drunk driver did not talk to an attorney and made the decision on their own? How would the Supremes rule on those different facts?
What happened in today’s Brooks decision is nothing groundbreaking, it was an opinion designed for a particular result, not the least of which is to prevent the Supreme Court of the United State from reviewing Minnesota’s faulty DWI laws.