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In DWI case, lawyer is not a right if police have warrant

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Minn. Supreme Court
The Minnesota Supreme Court has ruled that a suspected impaired driver does not have a limited right to an attorney before submitting to a blood test if police have a search warrant. The Minnesota Supreme Court is seen here in March 2010.
Steve Mullis | MPR News 2010

Updated: 2:56 p.m. | Posted: 12:05 p.m.

The Minnesota Supreme Court has ruled 4-3 that a suspected impaired driver does not have a limited right to an attorney before submitting to a blood test if police have a search warrant.

Wednesday's decision comes in the case of a woman arrested on suspicion of drunken driving in 2017 in Dakota County. A deputy got a warrant for a blood sample, but she tried to get those results tossed from the case because she wasn't given the chance to talk with a lawyer.

"This is the one warrant where the law says if somebody says 'no,' the cops absolutely have to respect that 'no.' It's a big legal gray area, where if anybody needed the advice of an attorney it would be somebody who had the right to say no to a warrant, said Dan Koewler, who has been watching the case for the Minnesota Association of Criminal Defense Lawyers. "After this decision, they no longer have the right to make that phone call."

Koewler says an attorney might advise a client to also get an independent test or explore alternatives.

Prior case law found that a driver has a limited right to consult with an attorney before submitting to a blood test, but the Supreme Court says this case is different because police had a warrant, and a warrant protects rights of the accused.

Bill Lemons of the Minnesota County Attorneys Association says prosecutors have been awaiting guidance offered by the decision because it could affect thousands of cases where drug or alcohol impairment is suspected.

"It's been an issue we've been waiting to get a final decision on for a couple of years now," Lemons said.

Lemons said time is of the essence because alcohol or other substances can dissipate if tests are delayed. He says the accused can still fight use of the evidence in court.

"They can challenge the validity of the search warrant or if there are issues with the testing. They still have their right in court to do that. This is just allowing the officer to go ahead and to get the sample." 

While breath tests are the most common in DWI stops, thousands of cases per year result in urine or blood draws.

Refusing to take the test continues to be a potential crime in itself.