The Minnesota DWI Case Of The Week is Ness v. Commissioner of Public Safety (Decided December 11, 2023, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the failure to read verbatim the Minnesota DWI Search Warrant Advisory is not fatal as long as the advisory given is not inaccurate, misleading or confusing.
In Ness, the Petitioner was arrested for driving while impaired and was taken to jail. The arresting officer asked the Petitioner if he preferred to take a blood or a urine test. The Petitioner responded that the officer was not going to obtain either test from him.
The officer obtained a search warrant authorizing him to procure either a blood or urine sample from appellant. After obtaining the warrant, the officer approached Petitioner's holding cell, stated Petitioner's name, and asked Petitioner to come talk to him. Petitioner was lying down on the cell bed, was wrapped in a blanket with his eyes closed, and did not get up or respond to the officer. The officer informed Petitioner, “as I told you before, I was drafting a search warrant for your blood or urine because of the DWI, and I have a signed search warrant in my hand, and refusing to submit to that search warrant is a crime.” The officer asked Petitioner if he understood. The officer testified that appellant did not respond and was ignoring him, but that at one point Petitioner opened his eyes and looked at him while adjusting his blanket before continuing to ignore him. The officer asked Petitioner if he was refusing to give the officer a test, to which Petitioner did not reply.
The officer then told Petitioner that he was taking his silence as a refusal, and asked if Petitioner understood. Petitioner again did not reply. The officer informed Petitioner that he was leaving Petitioner a copy of the search warrant but Petitioner's noncompliance with the warrant would be considered a refusal and he would be charged with an additional crime. The officer then issued a Notice and Order Of Revocation of the Petitioner's driver's license.
The Petitioner challenged the revocation of his license asserting that his refusal to submit to testing was not properly obtained. Petitioner claimed that since the officer failed to read the search warrant advisory statutory language verbatim, and failed to offer both a blood or urine test, the revocation of his license must be rescinded.
The district court sustained the revocation and on appeal, the Minnesota Court of Appeals upheld the lower court, stating:
"Minn. Stat. § 171.177, subd. 4. “At the time a blood or urine test is directed pursuant to a search warrant . . . the person must be informed that refusal to submit to a blood or urine test is a crime.” Id., subd. 1.
"Minnesota Statutes section 171.177, subdivision 2, provides, in part, that:
The peace officer who directs a test pursuant to a search warrant shall direct a blood or urine test as provided in the warrant. If the warrant authorizes either a blood or urine test, the officer may direct whether the test is of blood or urine. If the person to whom the test is directed objects to the test, the officer shall offer the person an alternative test of either blood or urine.
Action may only be taken against a person who is offered and refuses both a urine test and a blood test. Id., subd. 2."
"This court has determined that the warning requirement under Minn. Stat. § 171.177, subd. 1, is unambiguous and law enforcement is required to inform a defendant that refusal to submit to a warranted blood or urine test is a crime. State v. Mike, 919 N.W.2d 103,110 (Minn. App. 2018), rev. denied (Minn. Aug. 20,2019)."
***
"In Nash, this court considered whether law enforcement provided the search-warrant advisory required under Minn. Stat. § 171.177, subd. 1, when a state trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” 989 N.W.2d at 706. Even though the warrant also permitted a urine test, the trooper did not mention the possibility of a urine test, and Nash did not have an opportunity to read the warrant before agreeing to the blood test. Id. at 710. We concluded that “the advisory informed Nash that he could be charged with a crime if he refused the blood test, even though the trooper had not offered Nash an alternative urine test. That was an inaccurate statement of law and misleading,” and could not be a basis for Nash’s license revocation. Id. at 710-11. We held that if a search-warrant advisory deviates from the exact wording of Minn. Stat. § 171.177, subd. 1, it “is insufficient to sustain the revocation of a person’s driving privileges if it is an inaccurate statement of law, misleading, or confusing when considered in its context as a whole.”
"Although here the officer’s search-warrant advisory did not comply with the exact wording of Minn. Stat. § 171.177, subd. 1, Nash supports that a deviation is only problematic if it is an inaccurate statement of law, misleading, or confusing in its context. 989 N.W.2d at 711. Here, the officer’s advisory was legally accurate and properly advised appellant of the consequences of his refusal. The officer testified that at the jail and prior to applying for a search warrant, he asked appellant whether he preferred a blood or urine test, to which appellant responded that he would provide neither. After applying for and receiving a search warrant, the officer told appellant that he had obtained a signed search warrant for appellant’s blood or urine, and that refusing to submit to the search warrant was a crime."
"The plain language of subdivision 2 does not require law enforcement to separately direct the tests. A peace officer who directs a test “shall direct a blood or urine test as provided in the warrant,” and if the warrant authorizes both, the peace officer “may direct whether the test is ofblood or urine.” Minn. Stat. § 171.177, subd. 2 (emphasis added). If a person objects to one test, the peace officer shall offer the other test. Id. The statute does not prohibit a peace officer from simultaneously offering a urine or a blood test. “Action may be taken against a person who refuses to take a blood test only if a urine test was offered and action may be taken against a person who refuses to take a urine test only if a blood test was offered.” Id. Here, the officer testified to offering both types of tests to appellant before the officer obtained a search warrant. After obtaining the warrant, the officer again indicated to appellant that both tests were authorized by the search warrant before informing appellant that refusal to comply with the search warrant was a crime. The officer therefore complied with the requirements of Minn. Stat. § 171.177, subd. 2."
Moral Of The Story: Close enough for government work.
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.
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