• Test Refusal


    Anyone who is driving a motor vehicle in Minnesota may be subject to a chemical test to test for drugs or alcohol if they are suspected of driving under the influence of either of those types of substances. If the driver refuses to take the blood, urine, or breath test, then they could be charged with a gross misdemeanor in addition to losing driving privileges for a year.

    The reason why driving privileges can be suspended is because of what is called “implied consent.” The law says that when a person acquires a driver’s license, they are implying that they give consent for such tests to be conducted if suspected of DWI. It is a part of the right to have a driver’s license.

    However, it was recently ruled by the Supreme Court that obtaining such evidence without trying to get a warrant when a person refuses is unconstitutional. Being that most people consent because they are warned they will be charged with a crime, it is not typical for a person to refuse.

    Nonetheless, there are two types of tests that are conducted in the field. They are field sobriety tests and chemical tests. Before you take these tests, you are entitled to call your St. Paul DWI attorney to ask for advice and you do not have to say anything to the officer until you have consulted with your lawyer.


    Drivers that are suspected of DWI are typically asked to submit to field sobriety tests after they have been stopped by a patrol officer. These investigative tests are conducted to boost the evidence that they may have against a person they believe has been driving under the influence. The test includes a preliminary breath test using a breathalyzer device, walking a straight line, saying the ABCs forward and backward, touching the index finger to the nose, and other tests designed to see if a person’s mental and motor functions are impaired. Some of the tests are even difficult for sober drivers to successfully complete. Field sobriety tests are not mandatory, thus a person cannot be charged with a crime for refusing them.


    Chemical tests, on the other hand, include blood, urine, and the final breath test. These tests are mandatory and the test refusal of these tests can result in criminal charges.

    If you are arrested on probably cause for DUI or DWI, you are required to submit to the testing. Before the test can be conducted, the police officer must read an implied consent advisory. This indicates that test refusal is a crime. It also states that the suspect can contact a St. Paul DUI attorney. You can discuss the issue with your attorney. However, Minnesota law says that you have to submit to the chemical test, especially if you refused the preliminary breath test or the preliminary breath test indicated that your blood alcohol concentration was .08 or above. You are also required to submit to chemical testing if you were involved in a car accident that caused personal injury, death, or property damage.

    Whether or not the chemical test is one that tests the urine or blood is up to the arresting officer. This means the officer could ask you to perform a breath test, which means you will have to supply two samples. The officer is not required to offer you an alternative testing method. However, an officer must give you the option to take a urine test if you are requested to take the blood test and vice versa.



    Missouri V. McNeely

    A landmark decision was made on April 17, 2013 by the Supreme Court in the case of Missouri v. McNeely. This decision sets a precedent that will have an effect on Minnesota DWI law for many years to come. While it is not known how extensive the impact of the decision is, the argument is that the decision could be the end of the strict Test Refusal criminal statute in Minnesota. It is also believed that the decision will change the way law enforcement officers carry out sobriety testing during DWI arrests, despite the fact the early response from law enforcement and prosecutors is that the decision in the McNeely case only applies to blood tests that are obtained without the consent of the driver.

    The case of Missouri v. McNeely is an example of an issue that occurs in criminal DWI cases every day and the outcome of the case is an effective tool to aggressively negotiate a favorable outcome in the matter. A favorable outcome can include case dismissal or a reduction in the penalties or charges. It is anticipated that there will be contested hearings throughout Minnesota in an effort to apply the McNeely decision to every Test Refusal and DWI case.

    As for why the McNeely decision has such a profound impact on Minnesota, it is due to the question of whether or not an officer who is conducting a search is doing so under Fourth Amendment protection or not? If the search is protected by the Fourth Amendment of the U.S. Constitution, then another question is whether or not that officer should be conducting the search? Defense attorneys have been fighting this battle for many years, asking this question again and again until it was addressed in a decision made by the Supreme Court in the 2008 case of State v. Shriner.

    State V. Shriner

    The Shriner case involved an officer drawing blood from a suspect without the suspect consenting. She had sustained injuries in an accident and it was suspected that her impairment contributed to the accident. The driver argued that the blood draw was performed without warrant, without her consent, and that it contradicted the law. The Minnesota Supreme Court ruled that the dissipation of alcohol in her bloodstream created urgency that justified the blood draw without a warrant being issued. The court was very careful in this case, as they only limited this holding to cases involving accidents with injuries.

    The court concluded in the Shriner case that when an officer has probable cause to believe that a driver was under the influence at the time of criminal vehicular operation or vehicular homicide, it is imperative that a blood test be conducted within two hours of the accident that caused injury or death to another person. Because of how the body metabolizes alcohol in the bloodstream, there are circumstances that allow for the gathering of evidence before it is gone. In this case, the evidence is in the blood, but the officer does have to have probable cause to believe that the criminal vehicular operation was committed by the accused to legally carry out the test.

    After the Shriner decision was handed down, defense attorneys continued forward with the argument that warrants were needed in non-injury DWI cases. Law enforcement and prosecutors disagreed and tried to have the Shriner decision affect all DWI investigations. The Minnesota Supreme Court would eventually side with law enforcement and prosecutors in the 2009 case of State v. Netland. This was a Test Refusal case in which the driver maintained that the Test Refusal criminal statute was unconstitutional.

    State V. Netland

    The argument in the Netland case was that it was unconstitutional for the State to use criminal sanctions as a threat against a driver who refused a breath, blood, or urine test. The argument further stated that a person has a Fourth Amendment right to refuse a search and force the acquisition of a warrant by the officer. The only way to avoid the Test Refusal criminal statute from being deemed a violation of constitutional rights was to convince the Minnesota Supreme Court that a routine DWI investigation did not require a warrant. This is when the court agreed that the decision in the Shriner case needed to be extended to all DWI cases and not just those involving injury or death.

    The Netland opinion resulted in the death of the warrant argument in DWI cases. Officers were then allowed to conduct a search of a person’s suspected alcohol concentration in every suspected DWI case, even without any attempt to acquire a warrant. Despite the fact defense attorneys strongly disagreed with the opinions passed down in the Shriner and Netland decisions, they became the way things were until the Missouri v. McNeely case came about and touched upon the issue again.

    Missouri V. McNeely Decision

    The issue at hand in the McNeely case was whether or not the urgency created by the dissipation of alcohol in the bloodstream should be the only reason why the search warrant requirement would need to be bypassed. The Missouri Supreme Court determined that that should not be the only factor keeping officers from obtaining a warrant. The Missouri Supreme Court also noted the Shriner and Netland cases when referring to the split of authority. From there, prosecutors were able to get the U.S. Supreme Court to review the case.

    The Supreme Court released their decision on April 17, 2013 and it stated that the natural process of dissipation of alcohol in the bloodstream was not enough to avoid the search warrant requirement in every DWI case. Instead, the State needs to prove a host of circumstances in an individual case that can justify carrying out the blood alcohol content search without obtaining a warrant. This is what defense attorneys had been fighting for long before the Shriner and Netland cases.

    Prosecutors are now working to limit the power of the McNeely decision to include only cases where the blood test may be nonconsensual. Such cases are very rare in Minnesota. Officers have been told to continue with the procedures that they have been following, which is risky for them in that this could lead to an increase in litigation while both sides are working out the scope of the McNeely decision. Where prosecutors had initially argued in the Netland case to extend search to all DWI cases, they are now arguing to only extend them to nonconsensual blood tests. This is despite the McNeely decision not having the limitations within its language that the Shriner decision had. However, the U.S. Supreme Court stated previously that breath, blood, and urine tests are searches that are protected by the Fourth Amendment because of the intrusion into the body. The McNeely case only deals with blood draw intrusion because the McNeely incident only involved a blood test, but there is no language within the decision that limits the holding to just nonconsensual blood tests.

    Many prosecutors are even arguing that most blood alcohol concentration searches are consensual anyway, which does create an exception to the warrant requirement. This creates an interesting situation within Minnesota.

    Minnesota is one of the few states that have a criminal sanction when someone refuses a sobriety test. State law requires the officer to advise the driver of the penalties right before they administer the test. This has resulted in defense attorneys arguing that consent given after being threatened with a criminal charge should not be considered voluntary consent. It was this very angle that prosecutors used to argue against warrants in the Shriner and Netland cases. This is when the Minnesota Supreme Court went with the urgency or “single factor exigency” element, leaving the consent argument for a future case. This put the State back to where they were at the beginning of the argument, forcing prosecutors to reevaluate their original stances, as well as the defense attorneys, regarding the consent factor.

    No matter how the appellate courts will interpret and rule on the issue, Ramsay Law Firm, PLLC will be ready to take it by the reins.

    In the end, the McNeely decision has clarified that the Fourth Amendment applies to every DWI arrest, but it does not address the individual right to refuse consent to a search so that an officer would be forced to obtain a search warrant. This has been compared to having to obtain search warrants for a home or car in other types of criminal investigations. Instead, the refusal to consent results in another crime that the officer can very easily fall back on and that’s the criminal charge of Test Refusal rather than allowing a person to claim their Fourth Amendment right to refuse a warrantless search. The question is whether or not the Test Refusal statute will maintain its constitutional status or if it will be deemed unconstitutional? Whatever the decision, Ramsay Law Firm, PLLC will be working to strengthen the rights of clients faced with these issues.