SailorsAllen Law

DWI Refusers….Unite!

It has been a little bit since the last blog so here are some updates.  Paul Manafort was not the only person this week some counts declared a mistrial.   We had an Ineligible Person in possession of a firearm hung jury where it was science versus belief.   Those type of sweeping arguments have never been made before so it was nice to argue such a noncontroversial subject matter to a jury of 12 people.

Also, in more important news…a prosecutor who was listening to my client’s jail phone calls had admitted my client told the person on the other line that he has the best attorney north of the cities.  One, I am flattered.   That is a very nice thing to say.   Two, what does the Twin Cities have that is so special?

Next, the MN Supreme Court ruled on what the kids like to call “dick pics.”  We are too classy here to refer to them as “DP’s” so we will call them genitalia paraphernalia.  In State v. Decker, the MNSC said Decker could be charged with Indecent Exposure and 5thDegree Criminal Sexual Conduct for his genitalia paraphernalia.  You don’t know to be in the same place, just the same cyber space.    So don’t pretend before you hit send.

The biggest news is what the MN Supreme Court did on Wednesday.  The case was State v. Johnson and they applied new law that can be retroactively applied to old DWI refusals.   They got there by looking at three decisions.

The Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016), and MNSC’s decisions in State v. Trahan, 886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), created a class of people who could not be prosecuted for refusing an unconstitutional blood or urine test.

So a bit of history, Birchfield consolidated three cases.   The bottom line was the State could not ask for a blood test without a warrant but they could ask for a breath test because a breath test was a search incident to a lawful arrest.   The reasoning behind this is, blood and urine tests are far more personal than a breath test.  For example, someone could find out pregnancy or disease through a blood or urine test.  Breath tests just involve the presence of alcohol and Hardees.

Therefore, a refusal to unconstitutional blood or urine test cannot be valid since the police would have to get a warrant.   So you cannot be prosecuted for refusing something unconstitutional.  So in order to get a DWI for refusing a blood or urine test the police need to get a warrant or show exigent circumstances, that they could not a warrant and the natural dissipation of alcohol in the bloodstream.  For example, if a person is in a hospital and going to be airlifted.  Thompson and Trahan, affirmed those rulings for the State.

So anyone who challenged refusals on blood or urine would have won while those case were being litigated, but what about the people before?   What about the guy who is in prison for refusing a blood or urine test?  Or the girl who is on probation for 4 more years for refusing a blood or urine test? Or someone who had an attorney who didn’t challenge the constitutionality of a blood or urine refusal?

The court said this following:

“The Birchfield rule does not merely regulate the manner in which a defendant is determined to be guilty or not guilty. The rule instead changes who can be prosecuted for test refusal. Prior to Birchfield, Minnesota statutes provided that persons could be convicted of test refusal if they “refuse[d] to submit to a chemical test of the person’s blood, breath, or urine.” See Minn. Stat. § 169A.20 (2016). But under the Birchfield rule, persons may be convicted of test refusal only if they refuse to submit to a breath test or if they refuse to submit to a blood or urine test when the police have a search warrant or a valid exception to the warrant requirement applies. Because of the Birchfield rule, those drivers who refuse to submit to warrantless blood or urine tests cannot be prosecuted unless the State proves that an exception to the warrant requirement applies. If no exception is proved, these drivers then are beyond the power of the State to punish.”


This does not happen often.  So if you or anyone you knew pleaded guilty or got found guilty for refusing a blood or urine test since…forever…you should contact the law offices of SailorsAllen Law. The best attorneys…not in the Twin Cities.

This is a watershed moment.  The floodgates are open.   Luckily we are talking about urine refusal floodgates.