Foreword- we have another case blog
by Ms. Marshak,
one of our current law clerks. She has
been doing an excellent job reviewing some of the most recent cases out of the Minnesota Supreme Court and Minnesota Court of Appeals. Below is her blog for Harrison
v. Commissioner of Public Safety, which essentially holds that when the police
take a blood sample they can test if for alcohol. (Is anyone really surprised about this one?)
Case Blog - Harrison vs. Commissioner of Public Safety – MN Ct.
of warning to drunk drivers: The Minnesota
Court of Appeals has ruled that blood tests to determine your
blood-alcohol content are not a violation of your Constitutional right against
unreasonable searches when the blood sample was legally obtained.
In a consolidated appeal, Jesse
Wayne Harrison challenged the previous decisions of the district court
sustaining two separate revocations
of his driver’s license after he was stopped twice in early 2009 for
suspicion of driving while
impaired in Carver
County. Harrison agreed to
have his blood drawn on both occasions, but when the blood samples (which
Harrison admitted were legally-obtained) later showed an alcohol concentration
over the legal limit, Harrison argued that the tests were inadmissible because
they were obtained by authorities without a warrant, thus violating his federal
and state constitutional
rights to be free from unreasonable searches.
Harrison argued that the case law cited by the Court of
Appeals regarding the exigent-circumstances exception applies only to the collection of a blood sample. Harrison
contended that a warrant was still required for subsequent testing of the
sample. Unfortunately, Harrison could not cite any authority for his position.
The Court cited United States v. Jacobsen, 466 U.S. 109, 122, (1984), which states
that a search occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed. The
Court concluded that when the state lawfully obtains a blood sample under the
implied-consent law for the purpose of determining alcohol concentration, that
person has lost any reasonable expectation of privacy in the alcohol
concentration resulting from analysis of the sample. Furthermore, the Court said that absent such
a privacy interest, any testing of the blood sample for its alcohol
concentration is not a search that implicates constitutional protection. Therefore, Harrison’s
assertion that his constitutional
rights were violated by the warrantless testing of his blood sample
was without merit.
So, what steps
can you take to protect yourself if asked to give a blood, breath or urine
1. CALL A CRIMINAL DEFENSE/DWI
ATTORNEY. In Minnesota,
if you are arrested on suspicion of DWI, you have the legal right to consult a
lawyer prior to responding to a request by police to consent to chemical
2. If you
do consent to the search and do provide a sample of blood, breath, or urine,
tell the police officer that you want to arrange an additional test.
a person who consents to chemical testing after a DWI arrest has the legal
right to an additional test.
Statutes Section 169A.51, Subd. 7 (b): The person tested has the right to have someone of
the person's own choosing administer a chemical test or tests in addition to
any administered at the direction of a peace officer; provided, that the additional
test sample on behalf of the person is obtained at the place where the person
is in custody, after the test administered at the direction of a peace officer,
and at no expense to the state. The failure or inability to obtain an
additional test or tests by a person does not preclude the admission in
evidence of the test taken at the direction of a peace officer unless the
additional test was prevented or denied by the peace officer.
Please remember that the interpretation
and analysis presented here is not intended to be legal advice. If you
are seeking legal advice please contact us for a free consultation and actual
examination the issues that your case may present.
Landon J. Ascheman,
(B) 612.217.0077 (C) 651.280.9533
P.S. Have an attorney in your phone? Add us now
612-217-0077 - While we hope you never need us, we're here if you do.
STATE OF MINNESOTA
IN COURT OF APPEALS
Jesse Wayne Harrison, petitioner,
Commissioner of Public Safety,
Filed May 4, 2010
Carver County District Court
File Nos. 10CV09310; 10CV09490
L. Swanson, Chaska, Minnesota (for appellant)
Swanson, Attorney General, Melissa Eberhart, Assistant Attorney General, St. Paul, Minnesota
Considered and decided by Stauber, Presiding Judge; Stoneburner, Judge; and Ross, Judge.
A person whose blood sample is
lawfully obtained and preserved in connection with a valid request under the
implied-consent law has no reasonable expectation of privacy in the amount of alcohol
contained in the sample and, therefore, subsequent testing of the sample to
determine the alcohol concentration does not constitute a search that
implicates constitutional protection.
In this consolidated appeal,
appellant challenges decisions of the district court sustaining two separate
revocations of his driver’s license. Appellant
argues that after his lawfully-obtained blood sample was preserved, the
warrantless testing of the sample for its alcohol concentration violated his
federal and state constitutional rights to be free from unreasonable
searches. Appellant asserts that the
district court in each case erred by failing to suppress evidence of his alcohol
concentration as the fruit of an illegal search, and erred by sustaining the
license revocations that were based on the illegally obtained evidence.
In early 2009, appellant Jesse Wayne
Harrison was arrested for driving while impaired (DWI) on two separate
occasions and was asked to consent to testing under the implied-consent law. On each occasion, Harrison
consented to a blood test to determine his alcohol concentration. Harrison
was, on each occasion, transported to a hospital where a blood sample was
was cooperative during both incidents, and he concedes that the blood samples
were lawfully seized.
The samples were analyzed to determine Harrison’s
alcohol concentration. The results of
each test indicated an alcohol concentration over the legal limit. The Minnesota Commissioner of Public Safety
revoked Harrison’s driver’s license under the
implied-consent law in each case. Harrison challenged the license revocations, arguing that
the alcohol-concentration evidence in each case was inadmissible because
testing the preserved blood samples for their alcohol concentration without a
warrant constituted an unreasonable search, in violation of his constitutional
rights. In each case, the district court
sustained the license revocation, concluding that because Harrison’s
blood was lawfully seized, a warrant was not required for the subsequent
testing. This appeal follows.
Does the warrantless testing for
alcohol concentration in a blood sample, which was lawfully obtained from a
person under the implied-consent law, constitute an illegal search under the United States
or Minnesota Constitutions?
standard of review is de novo.
A proceeding to challenge the revocation of a driver’s license under
the implied-consent statute is civil in nature, not criminal. State
v. Dumas, 587 N.W.2d 299, 303 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). Harrison’s
challenge to the license revocations is based only on his assertion of
violation of his rights to be free of unreasonable searches under the Fourth
Amendment to the United States Constitution and Article I, Section 10, of the
Minnesota Constitution. Because Harrison raises only a question of law, our review is de
novo. See Shane v. Comm’r of Pub.
Safety, 587 N.W.2d 639, 641 (Minn.
1998) (stating that, where the facts of a case are undisputed, questions of law
are reviewed de novo).
exclusionary rule applies to implied-consent proceedings.
The Fourth Amendment to the United States
Constitution provides, in relevant part, that the right of the people to be
secure in their persons against unreasonable searches and seizures shall not be
violated, and no warrants shall issue without probable cause. Article I, Section 10, of the Minnesota
Constitution contains a parallel provision.
Generally, evidence seized in violation of the constitution is
inadmissible for criminal prosecution in a court of law. State
v. Jackson, 742 N.W.2d 163, 177–78 (Minn.
2007) (citing Weeks v. United States,
232 U.S. 383, 398, 34 S. Ct.
341, 346 (1914) and Mapp v. Ohio, 367 U.S.
643, 648, 81 S. Ct. 1684, 1686–87 (1961)). The exclusionary rule has been applied to implied-consent
license-revocation proceedings. See, e.g.,
Haase v. Comm’r of Pub. Safety, 679
N.W.2d 743, 748 (Minn. App. 2004) (concluding that an officer’s warrantless
entry into Haase’s garage was an unreasonable search and that district court
erred by declining to suppress evidence seized pursuant to the warrantless
entry, and reversing the district court’s order sustaining revocation of
Haase’s driver’s license).
“It is a basic principle of
constitutional law that warrantless searches are presumptively unreasonable.” State
v. Shriner, 751 N.W.2d 538, 541 (Minn.
2008) (citing State v. Licari, 659
N.W.2d 243, 250 (Minn.
2003)). Because reasonableness is the
touchstone of the Fourth Amendment, there are several exceptions to this
rule. Id. (citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 1947 (2006)). Among the recognized
exceptions to the warrant requirement is a search conducted because of exigent
circumstances. State v. Hatton, 389 N.W.2d 229, 232 (Minn. App.
1986) (citing Katz v. United States,
347, 357–58, 88 S. Ct. 507, 514–15 (1967)), review denied (Minn. Aug.
Both the United States Supreme Court and
the Minnesota Supreme Court have recognized the validity of the application of
the exigent-circumstances exception to alcohol testing for impaired
driving. See Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966) (“[T]he delay
necessary to obtain a warrant . . . threaten[s] the destruction of evidence.”), Shriner, 751 N.W.2d at 549–50 (“[The] rapid,
natural dissipation of alcohol in the blood creates single-factor exigent
circumstances that will justify the police taking a warrantless, nonconsensual
blood draw from a defendant, provided that the police have probable cause to
believe that defendant committed criminal vehicular homicide or
operation.”). In State v. Netland, the Minnesota Supreme Court specifically held
that “under the exigency exception, no warrant is necessary to secure a
blood-alcohol test where there is probable cause to suspect a crime in which
chemical impairment is an element of the offense.” 762 N.W.2d 202, 214 (Minn. 2009). Harrison
concedes the constitutionality of the warrantless seizure of his blood for alcohol-concentration
testing in this case because the exigency exception applied. See id.
III. Testing for alcohol concentration in a blood sample, lawfully
obtained under the implied-consent law, does not constitute a search that
implicates constitutional rights.
Despite language in the relevant
caselaw that the exigent-circumstances exception applies to secure a
blood-alcohol test incident to DWI arrest, Harrison
argues that this caselaw only applies to the collection of a blood sample. Even if we were to concede that existing case
law permits a separate analysis for collection and testing, which we do not, we
would conclude that Harrison’s argument is
Harrison’s theory is that any
exigency that made the warrantless draw of his blood reasonable ceased to exist
when the sample was taken and preserved and, therefore, the later testing of
the blood sample for its alcohol concentration requires a warrant or an
exception (other than exigency) to the warrant requirement. Harrison
cites no authority for his assertion that testing a blood sample for its alcohol
concentration is an unreasonable search separate from lawful collection of the
A search occurs when an expectation
of privacy that society is prepared to consider reasonable is infringed. United
States v. Jacobsen, 466 U.S. 109, 122, 104 S. Ct. 1652, 1661 (1984)
(holding, in part, that a chemical test that merely disclosed whether or not a
particular substance was cocaine did not infringe upon any legitimate interest
in privacy). Similarly, the protections
of the Minnesota Constitution against unreasonable searches and seizures are not
triggered unless a person has a legitimate expectation of privacy, defined as
“those expectations of privacy that society is prepared to recognize as reasonable.”
v. Gail, 713 N.W.2d 851, 860 (Minn. 2006)
(quoting Katz, 389 U.S. at 361, 88 S. Ct.
at 516 (1967) (Harlan, J., concurring)) (quotation marks omitted).
We conclude that when the state has
lawfully obtained a sample of a person’s blood under the implied-consent law, specifically
for the purpose of determining alcohol concentration, the person has lost any
legitimate expectation of privacy in the alcohol concentration derived from
analysis of the sample. See United States v. Kincade, 379 F.3d
813, 837 (9th Cir. 2004) (holding, in connection with statutory DNA testing of
individuals convicted of certain crimes, that after a defendant’s identity has
become a matter of state interest due to conviction of certain crimes, the
defendant has lost any legitimate expectation of privacy in the identifying
information derived from blood sampling).
Absent such a privacy interest, any testing of the blood sample for its alcohol
concentration is not a search that implicates constitutional protection, and Harrison’s assertion that his constitutional rights were
violated by the warrantless testing of his blood sample is without merit.
D E C I S I O N
Because Harrison has no legitimate
expectation of privacy in the alcohol concentration derived from analysis of
his lawfully-obtained blood sample, the testing of his blood for its alcohol
concentration did not violate Harrison’s
constitutional rights against unreasonable searches.
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