The Minnesota DWI Case of the Week is unpublished Minnesota Court of Appeals decision of State v. McGee, (Decided April 26, 2011) which stands for the proposition that the police are not required to tell a person under arrest for DWI of available alternative test methods where the arrestee does not refuse the test offered.
In McGee, the Defendant was placed under arrest for DWI and after she was taken to the police station, the officer asked the Defendant if she wanted to speak to an attorney prior to testing. The Defendant waived her right to speak to counsel and was then asked by the arresting officer if she would submit to a urine test. Ms. McGee responded to the request by asking, "It has to be the urine test?". The officer's response was, "We take the urine test".
The urine sample given by the Defendant tested at an alcohol concentration level of .17. The Defendant subsequently challenged the admissibility of the urine test result arguing that the officer's failure to inform her of alternative tests to the urine test was a fatal error. The district court agreed with the Defendant, concluding that the officer materially misled Ms. McGee by failing to inform her of alternative tests, and thereby coerced her consent to the urine test. The State appealed the District Court's ruling and the Minnesota Court of Appeals reversed the decision stating:
"A person arrested for a DWI may be asked to submit to chemical testing of her blood, breath, or urine to determine the person's alcohol concentration. Minn.Stat. §169A.51, subd. 1(a) (2008). The decision of which test to administer-blood, breath, or urine-is within the discretion of the police officer. Although alternative tests are available, an officer is not required to explain this or offer another means of testing until the driver refuses the first test offered."(Emphasis added)
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"When asked if she would provide a urine sample, respondent replied, 'It has to be the urine test?' This is a question—not a test refusal. Absent a clear refusal of the first test, the officer had no obligation to alert respondent of alternative testing methods. The officer’s response that “We take the urine test” could have been more forthcoming, but clarification of the process is in the province of legal counsel, not the officer. See Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (“An attorney, not a police officer, is the appropriate source of legal advice.”). Respondent expressly declined her opportunity to consult with an attorney, stating, “No, let’s just proceed.” Because respondent did not overtly refuse the urine test, the district court erred by concluding that the officer coerced respondent to consent to urine testing by not informing her of alternative testing methods."
Moral Of The Story: NEVER, EVER WAIVE YOUR RIGHT TO COUNSEL PRIOR TO TESTING!!! (Otherwise, you may be stuck with an unreliable urine test result).
Moral Of The Story: NEVER, EVER WAIVE YOUR RIGHT TO COUNSEL PRIOR TO TESTING!!! (Otherwise, you may be stuck with an unreliable urine test result).
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
