The Minnesota DWI Case Of The Week is State v. Hammers (Decided September 18, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Minnesota Implied Consent Advisory does not have to inform an individual under arrest for DWI that the police need a warrant to obtain a blood sample.
In Hammers (unfortunate name), the Defendant was stopped for driving over the fog and center lines. The deputy noticed that Hammers' eyes were watery and bloodshot and after the Defendant failed field-sobriety tests, Mr. Hammers was arrested and taken to the Carver County jail.
Mr. Hammers was read the Minnesota Implied Consent Advisory, which informed him that Minnesota law required him to take an alcohol concentration test, that refusal to test was a crime, and that he had the right to consult with an attorney before deciding whether to submit to the test. Hammers stated that he understood the advisory and he declined to speak to an attorney. He took a breath test, which revealed an alcohol concentration of 0.29.
Hammers filed a motion to dismiss the DWI charges arguing that the Minnesota Implied Consent Advisory was misleading and, therefore, violated his right to due process. The District Court denied the motion and on appeal, the Minnesota Court of Appeals affirmed, noting that: "An implied consent advisory that contains no misleading assurances would not violate federal due process"..."Hammers maintains unconvincingly that the implied-consent advisory must also inform drivers that Minnesota law allows officers to seek a search warrant to obtain a chemical test. He cites Birchfield v. North Dakota for the notion that the advisory defined by statute is inadequate because it lacks a warrant advisement. See U.S. , 136 S. Ct. 2160 (2016). The Birchfield Court held that a breath test is a permissible search incident to a person's drunk-driving arrest and that the state may therefore criminally prosecute the person for refusing a warrantless breath test. 136 S. Ct. at 2186. We read nothing in Birchfield to require the state's implied-consent advisory to contain a warrant advisement for breath tests."
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"Because neither the statute nor any caselaw requires a warrant advisement, the advisory was not misleading and did not violate Hammers's due process rights. The district court did not err by denying Hammers's motion to dismiss."
What is interesting about this case is that the Court also states in its opinion that, "Current Minnesota law would not have permitted police to obtain a warrant to test Hammers if he refused testing after he received the implied-consent advisory. See Minn. Stat. § 169A.52, subd. 1 (2016) ("If a person refuses to permit a test, then a test must not be given."); see also State v. Scott, 473 N.W.2d 375, 377 (Minn. App. 1991) (explaining that police may not compel driver to submit to test after driver refuses test)."
So this case is interesting because some counties (Isanti, Carver, come to mind) are reading the advisory and if the defendant refuses, executing a search warrant to get the blood. This practice is now clearly illegal.
Moral Of The Story: You should exercise your right to counsel prior to testing as it may save you from a DWI!!
In Hammers (unfortunate name), the Defendant was stopped for driving over the fog and center lines. The deputy noticed that Hammers' eyes were watery and bloodshot and after the Defendant failed field-sobriety tests, Mr. Hammers was arrested and taken to the Carver County jail.
Mr. Hammers was read the Minnesota Implied Consent Advisory, which informed him that Minnesota law required him to take an alcohol concentration test, that refusal to test was a crime, and that he had the right to consult with an attorney before deciding whether to submit to the test. Hammers stated that he understood the advisory and he declined to speak to an attorney. He took a breath test, which revealed an alcohol concentration of 0.29.
Hammers filed a motion to dismiss the DWI charges arguing that the Minnesota Implied Consent Advisory was misleading and, therefore, violated his right to due process. The District Court denied the motion and on appeal, the Minnesota Court of Appeals affirmed, noting that: "An implied consent advisory that contains no misleading assurances would not violate federal due process"..."Hammers maintains unconvincingly that the implied-consent advisory must also inform drivers that Minnesota law allows officers to seek a search warrant to obtain a chemical test. He cites Birchfield v. North Dakota for the notion that the advisory defined by statute is inadequate because it lacks a warrant advisement. See U.S. , 136 S. Ct. 2160 (2016). The Birchfield Court held that a breath test is a permissible search incident to a person's drunk-driving arrest and that the state may therefore criminally prosecute the person for refusing a warrantless breath test. 136 S. Ct. at 2186. We read nothing in Birchfield to require the state's implied-consent advisory to contain a warrant advisement for breath tests."
***
"Because neither the statute nor any caselaw requires a warrant advisement, the advisory was not misleading and did not violate Hammers's due process rights. The district court did not err by denying Hammers's motion to dismiss."
What is interesting about this case is that the Court also states in its opinion that, "Current Minnesota law would not have permitted police to obtain a warrant to test Hammers if he refused testing after he received the implied-consent advisory. See Minn. Stat. § 169A.52, subd. 1 (2016) ("If a person refuses to permit a test, then a test must not be given."); see also State v. Scott, 473 N.W.2d 375, 377 (Minn. App. 1991) (explaining that police may not compel driver to submit to test after driver refuses test)."
So this case is interesting because some counties (Isanti, Carver, come to mind) are reading the advisory and if the defendant refuses, executing a search warrant to get the blood. This practice is now clearly illegal.
Moral Of The Story: You should exercise your right to counsel prior to testing as it may save you from a DWI!!
If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.
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