MINNEAPOLIS - A dilemma building in the battle against drunken driving has prosecutors and police fretting, while defense attorneys are quietly delighted.
The question is whether police need search warrants to obtain breath, urine or blood tests from arrestees.
An April U.S. Supreme Court ruling in a case referred to as "McNeely," overruled the longstanding concept in two Minnesota cases that search warrants were not needed.
"There are cases by the names of Schriener and Netland which originally set the ruling in Minnesota and those cases, more or less, ruled that law enforcement does not have to have a warrant for a blood, breath or urine test," said Robert Foley, Managing Attorney of Gerald Miller and Associates of Minneapolis. "Now, McNeely specifically overruled that."
Stearns County has already moved to direct its law enforcement officers to obtain search warrants in DWI arrests. However, almost all other Minnesota counties are awaiting direction from the Minnesota Supreme Court.
"We have a case, Brooks, which is at the Minnesota Supreme Court, scheduled to get heard next month, I believe," said Bill Lemons, Minnesota County Attorneys Association. "Things are kind or up in air right now."
Since 1963, law enforcement has read arrestees an implied consent advisory. Then a test, either breath or blood, is requested. Now, the feeling is the courts may require that arresting officers obtain a search warrant from a judge before requesting the test.
"We are going to continue to arrest people," said Lemons. "It is just a question of how and I think we will get some guidance from the Minnesota Supreme Court."
Foley admits the change to a search warrant requirement may benefit his defense clients.
"It is some added steps, some other potential defenses for us when it comes to the test result, whether it was lawfully obtained and whether or not that test was obtained constitutionally," Foley said.
Arguments in the Brooks case in St. Paul are set for mid-September.
There were 30,000 DWI arrests in Minnesota in 2012, according to the MCAA. Twelve percent of those arrested refused to be tested. The refusal means the forfeiture of the driving license for at least a year. The national average of those refusing testing after a DWI arrest is about 22 percent.