McNeely Updates


The United States Supreme Court’s recent decision in Missouri v. McNeely, sent shock waves throughout the country. In the short time since the decision was issued in April 2013, several district courts in Minnesota have heard motions to suppress test results in DWI cases based upon McNeely. The results have been mixed to say the least.

Several judges have determined that the collection of evidence without a search warrant (whether it be via blood, breath or urine) was obtained illegally and should be suppressed. However, several other judges have found that even though the collection of the sample was obtained without a warrant, that the results are not suppressed because the defendant “consented” to the search.

The problems with upholding the warrantless search based upon consent is a lengthy analysis. In Minnesota, when a suspect is arrested for suspicion of a DWI, the officer reads to them the Implied Consent Advisory. The Advisory informs the suspect that Minnesota law “requires” them to take a test to determine their blood alcohol level. The Advisory also informs the suspect that refusal to consent to testing is a “crime.” After being read this advisory, the suspect is given the choice, (1) consent to testing or (2) be charged with the crime of refusal (which is a more severe criminal charge than a DWI).

The various county attorneys are arguing that this is consent. Even if it is arguably consent, the law specifically requires consent to be voluntary and not coercive. In addressing this issue, Judge Thomas McCarthy of Sibley County District Court recently noted in his decision to suppress a urine test that “[i]t is hard to imagine a more coercive statement from a police officer than telling someone that if they do not comply, they will have committed a crime.”

Additionally, all individuals in the United States have a right against incriminating themselves. Submitting to chemical testing is akin to incriminating oneself. However, refusing to submit to testing is a crime. How can individuals be subject to criminal charges for invoking their right not to incriminate themselves? This is yet another question that the Courts will need to address in the future.

Shortly after the McNeely decision was released, the United States Supreme Court vacated and remanded the Brooks case to the Minnesota Court of Appeals. The Brooks case involved a urine test. The Court of Appeals will first need to determine whether McNeely applies to urine tests (and I have yet to see a reliable argument as to why it would not), and if it does, then the Court will finally have to address whether or not the ‘consent’ given pursuant to the Implied Consent Advisory is constitutional.

The McNeely decision is already affecting thousands of pending DWI cases, and this issue is only going to get more interesting in the upcoming months. Stay tuned.

#mcneely #dwi #minnesota