The United States Supreme Court gave us false hopes when it, by 9-0 voted, granted cert in Minnesota v. Brooks, vacated the anti-defendant judgment, and remanded in light of its recent McNeely opinion. Missouri v. McNeely (2013) 569 U.S. --- [133 S.Ct. 1552.]
McNeely had reiterated the 47 year old rule in Schmerber v. California (1966) 384 U.S. 757 that warrants are presumptively required for blood draws incident to arrest for drunk driving, further providing that more than the argued evanescence of the alcohol in the system is required before exigency can be found to dispense with the warrant requirement.
Always swirling around is the question of statutory “implied consent,” and whether that is true Fourth Amendment consent, which allows a detour around the warrant clause. In Brooks, an implied consent state [as is McNeely!], the record from below found that the defendant “agreed” to one test and “consented” to the other, urine tests collected prior to McNeely. When the U.S. Supreme Court granted cert. [which they didn’t have to do] and vacated the judgment and remanded, it was reasonable to believe that they were signaling to Minnesota that neither consent nor non-blood nor “retroactivity” were an appropriate Fourth Amendment issue – that the Supreme Court’s recognition that stabbing someone to suck out his blood, which they had already asserted was of the same measure as residential searches, would not invite this sort of invasion of what appears to be [read “is”!] coerced “consent.” Of course, the Supreme Court had already held that breath and urine tests were to be gauged the same, for Schmerber analysis, as blood draws, Skinner v. Railway (1989) 489 U.S. 602, 616-618, so there should not be any issue here with urine. Weirdly, though, there remains confusion on that issue, with many California judges flatly ignoring Skinner and pretending that there is different analysis for breath! Not so. I’ll have to repeat that point in bold 3 times in all my pleadings here-on-out, because once seems not to carry the day! But I digress….
Brooks just came down, and ooops! http://www.mncourts.gov/opinions/sc/current/OPA111042-1023.pdf
In their wisdom [!], it is not coerced “consent” to tell a person that if he refuses a test, under the implied consent doctrine, that it is a new and distinct crime!!! Uh, “you’ll go to jail if you don’t let us suck your blood,” if followed by a sheepish “Ok, you can draw my blood,” is deemed to not be a coerced “consent.” Uh, Hello!!! What planet are we on? Certainly not the one containing the place touting itself the Land of the Free and Home of the Brave, where the Framers announced that the role of the judiciary is to protect individuals from a rapacious government. Federalist 78.
Two important distinctions between the Minnesota standard and ours is that (a) they cannot draw your blood if you refuse [they just put you in jail for the refusal!], and (b) the suspect may consult with counsel before making a decision. I am sure we are going to find judges here who will seize upon those distinctions and let the Fourth Amendment carry the day for people accused of DUI!
It is interesting that the Court there is not relying on “implied consent,” but instead is relying on the fact that the guy gave actual consent after having the implied consent statute read to him. Huh???
All justices on the Minnesota Court joined in that bizarre and incomprehensible liberty erosion except one [aside from an abstaining one], a concurring justice who felt that the Herring Heresy case of Davis v. United States (2011) --- U.S. --- [131 S.Ct. 2419] was the vehicle for saving the government’s case instead of pretending that there was true consent. He correctly recognizes that threatening to throw one in jail if he does not “consent” is coerced, but he bizarrely believes that McNeely is new law, despite that it merely reiterates Schmerber’s pro-warrant rule, so he would hold that the exclusionary rule does not apply. [We will explain elsewhere the facts and evils of the Herring Heresy.]
Lunatics and asylum caretakers, etc., come to mind. But this holding further reinforces the notion that drunk driving is a political crime, enabled by purposeful sorts, from neo-prohibitionist lobbyists to political slug legislators to power hungry executives to judges who know not [or care not] their intended role in this Republic.
Brooks is to constitutional consent law what Dred Scott was to human dignity law, and the justices in both should hang their heads in shame – but they do not have consciences that invite a sense of shame. This is juristic terrorism at its worst.
One of the worst things about what is going on in drunk driving law, and in law in general, is that people have a diminishing belief that they can come into the courthouse and obtain relief from oppression, and the possibility of an appeals remedy from a negative trial court finding is all but a pipe dream regarding hopes and aspirations from a time long gone [if it ever really was here].