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Do you have a warrant for that blood test, officer?

The status of law enforcement's right in Minnesota to demand a blood test of suspected drunk driver took another turn this week, with the release of an opinion by the Minnesota Court of Appeals in a case called State v. Trahan. The case involved a driver suspected of DWI who refused to take a blood test. Rather than prosecuting him for driving while intoxicated based on other evidence of impairment, the state only charged him under Minnesota's unusual crime of refusing to test under the state's implied consent law.

The court of appeals ruled that that law as applied to a blood test request was unconstitutional. Earlier this year, the Minnesota Supreme Court came to the opposite conclusion in a case involving a breath test called State v. Bernard. In Bernard, the court concluded that because breath tests are not invasive, the state could take that evidence "incident to a lawful arrest." Under the court's logic, because a driver has no right to insist that an officer obtain a search warrant for breath alcohol evidence, he could be prosecuted for failing to turn it over when asked. The Court of Appeals' majority opinion in Trahan concluded that a search of an individual's blood is significantly more invasive, and unlike the breath, does not easily exit the body for testing. Accordingly, a driver would have the right to insist on an officer obtaining a warrant for his blood.

The court of appeals concluded that because Trahan had a constitutional right to withhold his consent to a warrantless search of his blood, it would be fundamentally unfair to allow him to be prosecuted for exercising that right. Because being free from warrantless searches and seizures is a fundamental right under both the state and federal constitutions, the court applied "strict scrutiny," the highest level of constitutional review, and found that the refusal statute was not "narrowly tailored" to serve the compelling state interest. It noted that the police could use other methods to prosecute, including prosecuting the case without a test or simply obtaining a warrant.

For now, it appears that police will need a warrant to obtain a blood test when the DWI suspect refuses. But the situation is far from settled, as Ramsey County has stated they will be appealing this ruling to the State supreme court. In addition, the attorneys for Mr. Bernard (Sheridan and Dulas, P.A.) have asked the U.S. Supreme Court to review his case and find that the statute is unconstitutional for breath cases as well .

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