Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Poeschel v. Commissioner of Public Safety (Decided October 26, 2015, Minnesota Court of Appeals, Published) which stands for the proposition that absent a request, the police do not need to provide an individual under arrest for DWI with the use of a telephone to arrange for additional testing.

In Poeschel, the Petitioner was arrested for DWI and was taken to the Prairie Island Public Safety Office, where she was read the Minnesota Implied Consent Advisory.  Ms. Poeschel exercised her right to speak to an attorney prior to testing and while she was on the telephone with the attorney, she told the arresting officer that she wanted to obtain an additional test.

Ms. Poeschel subsequently provided a urine sample but she did not repeat her earlier request for an additional test.  The urine test result came back at a .14, prompting the Commissioner of Public Safety to revoke her license.  

Ms. Poeschel petitioned for judicial review of her license revocation arguing that her statutory right to obtain an additional test had been violated.  The District Court sustained the revocation and on appeal, the Minnesota Court of Appeals affirmed the district court's decision.

The Court of Appeals noted that Minnesota Statute § 169A.51 subs. 1(b) states:

[t]he person tested has the right to have someone of the person's own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

But then the Court noted, "In determining whether an additional test has been prevented or denied, we must draw a distinction between an officer's failing to assist and an officer's hampering an attempt to obtain such a test. An officer must allow an additional test to be administered, but "need not act affirmatively to facilitate the test." (citations omitted).

The Court of Appeals then discusses Theel v. Commissioner of Public Safety, 447 N.W.2d 472 (Minn.App.1989), stating:

 "Poeschel relies on Theel v. Comm 'r of Pub. Safety, 447 N.W.2d 472 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). In Theel, the driver asked for additional testing and attempted to arrange a test after submitting to the state's test. 447 N.W.2d at 473. The driver made several calls to hospitals, but no one from the hospitals would go to the jail to administer a chemical test. Id. The driver told the jail staff that he was not able to get help from any hospital and asked if he could call an attorney to arrange an additional test. Id. The staff responded "[fjorget it. They're all sleeping." Id. 

This court determined that the driver "wanted to call an attorney to assist him in exercising his right to obtain an additional test and the officer hindered his attempt." Id. at 474. This court therefore held that the driver's statutory right to additional testing was prevented or denied. Id.

Unlike the circumstances in Theel, the record does not reveal any attempt by Poeschel to arrange an additional test. More importantly, Poeschel did not ask to use a telephone to arrange an additional test after she submitted to the state's test. If the officer in this case had refused such a request, we would likely conclude that the officer prevented or denied an additional test. See id. But those are not the circumstances here.

Essentially, Poeschel asks this court to create an affirmative duty requiring an officer to offer a driver posttest use of a telephone to arrange an additional test even though the driver has not asked to use the phone. We decline to do so. Caselaw consistently describes an officer's obligation as allowing the use of a telephone, as opposed to offering the use of a telephone."    

Moral Of The Story:  If you want to arrange for an additional test, ask to use the phone for that purpose AFTER submitting to testing.
 

If you or a loved one has been arrested for 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 questions.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Trahan (Decided October 13, 2015, Minnesota Court of Appeals, Published) which stands for the proposition that if the police fail to attempt to obtain a search warrant for a blood or urine DWI sample, then the Defendant cannot be charged with the crime of Refusal To Submit to Testing if he fails to provide  said sample.

In Trahan, the Defendant was stopped for erratic driving and things went down hill from there.  The officer noticed indicia of intoxication and Mr. Trahan was subsequently placed under arrest for DWI.

The Defendant was read the Minnesota Implied Consent Advisory at the Ramsey County Jail and was asked to provide a blood or urine sample.  Mr. Trahan agreed to provide a urine sample but the officer deemed the sample deficient so he requested the Defendant submit to a blood test.  Mr. Trahan refused to submit to the blood test and was subsequently charged with the crime of Refusal To Submit to Testing in the First Degree.

The Defendant challenged the constitutionally of the Test Refusal Statute and the Minnesota Court of Appeals agreed that as to blood or urine (but not breath) test requests, the statute is unconstitutional.

The Court of Appeals recognized that if the police do not need to seek a search warrant for the sample, then the state may criminalize the refusal to provide the sample.  But if there is not a recognized exception the warrant requirement, then the Defendant may not be charged with refusal under the Due Process Clause and the Fourth Amendment.

The Court of Appeals reasoned that in the Minnesota Supreme Court case of State v. Bernard, the Court had held that breath samples may be obtained without a warrant as a search of one's breath may be done as, "incidental to the arrest".  One exhales breath all the time and the police do not need to obtain a warrant to obtain a sample (Which is complete nonsense but that is what the Court ruled in Bernard).  But in Bernard, the Supreme Court also stated, "The differences between a blood test and a breath test are material, and not the least of those differences is the less-invasive nature of breath testing."

Trahan argued and the state did not dispute, that a warrantless blood test would not be justified under the search-incident-to-arrest exception to the warrant requirement. The Minnesota Court of Appeals agreed stating, "In Schmerber v. California, the United States Supreme Court explicitly recognized that the search-incident-to-arrest exception has 'little applicability with respect to searches involving intrusions beyond the body's surface.'...Unlike breath, blood does not naturally and regularly exit the body. And under Minnesota's DWI law, a blood draw can only be performed by a qualified medical professional.  Because a blood test here would have been highly intrusive, we conclude that a warrantless search of Trahan's blood would not have been constitutional under the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement."   

The Court then looked at the "exigent-circumstances exception" to the warrant requirement and found that in this case, the exception did not apply.  

In Trahan, the State argued "...the "exigency" was the expiration of the statutory time frame while Trahan was arrested, taken to the jail, read the implied-consent advisory, made phone calls, and produced a questionable urine sample. The state argued that under the particular facts of this case, exigent circumstances would have justified a warrantless blood test". 

But the Court of Appeals disagreed, stating: "The circumstances here are more akin to a routine impaired-driving arrest: the record indicates that Trahan was agitated and difficult. These circumstances fall within "those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn." McNeely, 133 S. Ct. at 1561. Because no exigency would have prevented police from seeking a warrant before conducting a blood test, we conclude that a warrantless blood test would not have been constitutional under the exigent-circumstances exception to the Fourth Amendment's warrant requirement.

Moral of the Story: If the police ask you to take a blood test, tell them to go get a warrant.

If you or a loved one has been arrested for 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 questions.