“Implied Consent” Still a Question in Minnesota

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A Minnesota law states that all drivers “consent” to being tested for DUI. A new State Supreme Court decision upholds that law, but criminal defense lawyer Kevin W. DeVore says it leaves a legal question mark.

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There are two legal questions at stake: when is a warrant needed, and what counts as consent?

Drivers pulled over for a suspected DUI have already consented to a blood or urine test, according to a new Minnesota Supreme Court decision last month. The decision affirms a law that's been on the books since 1961, but attorney Kevin W. DeVore says the court has not closed the door on further challenges.

The case, Wesley Eugene Brooks v. State of Minnesota, (State of Minnesota, Respondent vs. Wesley Eugene Brooks, Appellant – Case Nos. A11-1042, A11-1043) was the first challenge to the state law since a landmark federal Supreme Court decision earlier this year. That decision required that law enforcement seek a warrant before demanding a blood or urine test, according to the Minneapolis Star Tribune (10.23.2013).

Officers did not seek a warrant before testing Wesley Brooks during his DUI arrest, but Brooks agreed to the test when he was informed of the “implied consent” law.

“There are two legal questions at stake: when is a warrant needed, and what counts as consent?” said DeVore, a criminal defense lawyer who focuses on DUI work. “Unfortunately this case primarily focused on the issue of the warrant, which leaves other pending DUI cases with questions.”

Brooks' appeal claimed that he never really had the power to consent or refuse the alcohol test, because officers told him he would face criminal charges if he refused. On the surface the court decision would seem to strike down that claim, but DeVore says it's not so clear.

“The justices unanimously agreed that no warrant was needed, since Mr. Brooks did not resist the testing. But he was under duress. Is it constitutional to punish someone for resisting a blood draw?”

DeVore points to a concurring opinion by Justice David Stras. The opinion states, “It’s hard to imagine how Brooks’ consent could have been voluntary when he was advised that refusal to consent to a search is a crime.”

Brooks' attorney said he is likely to pursue the case with the US Supreme Court. DeVore says the outcome affects hundreds of other cases.

“What we've learned is that all the warrant requirements were met under a questionable law,” he said. “We have yet to see that law itself put to the test.”

About Kevin W. DeVore:

Kevin W. DeVore is an experienced Minneapolis criminal defense attorney and founder of the DeVore Law Office. He has achieved numerous courtroom victories for his clients. Mr. DeVore has been named a SuperLawyer for nine consecutive years and has one of the strongest success records of any lawyer in Minnesota. He can be contacted at:

30 East 7th Street
Suite 2800
St. Paul, MN 55101
(612) 836-9501

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