State v. Rosenbush
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State v. Rosenbush
Dissenting Opinion
As the court acknowledges today, we recognized a limited right to counsel in Friedman v. Commissioner of Public Safety because of the "critical and binding decision" drivers must make when asked to submit to chemical testing under Minnesota's implied-consent law.
In Friedman , we explained that the right to counsel under Article I, Section 6, of the Minnesota Constitution attaches at all "critical stages" of a criminal prosecution.
Just last year, in State v. Hunn ,
Here, Rosenbush was faced with the "unique decision" required to trigger the limited right to counsel announced in Friedman . Like the driver in Friedman , Rosenbush was read the applicable implied-consent advisory. See
But today, the court holds that police can deprive drivers of the limited right to counsel whenever they obtain a search warrant for chemical testing. Under the court's reasoning, because every individual who is the subject of a warrant must decide whether to comply with the warrant or suffer a penalty for refusal, deciding whether to comply with a warrant is not a "unique decision." In the context of our implied-consent law, however, the analysis is not that simple.
It is true that an individual who is the subject of a search warrant faces a consequence for noncompliance. But the implied-consent law is sui generis. This is because the implied-consent law explicitly forbids law enforcement from conducting a chemical test if the driver refuses.
In contrast, refusal to submit to a search warrant in any other context does not prohibit the police from executing the warrant and obtaining the evidence they are authorized to seize. In fact, police are permitted to use reasonable force in the face of a refusal to comply with a warrant in every other context. See
The court also reasons that the presence of a search warrant ameliorates the concerns that we articulated in Friedman . I disagree. Search warrants protect the Fourth Amendment right to be free from unreasonable searches and seizures. U.S. Const. amend. IV. They protect "personal privacy and dignity." Schmerber v. California ,
Further, the presence of a search warrant plainly does not address many of the central concerns animating our holding in Friedman . We noted that drivers will be confused about the "legal ramifications" of their decisions under the implied-consent law and that an attorney "could explain the alternative choices." Friedman ,
None of these concerns are resolved or ameliorated simply because the police have secured a search warrant. Drivers will still be left without guidance about the legal ramifications of their decision and will still have to make a critical and binding decision that will affect them in a subsequent DWI prosecution. A search warrant will not give drivers "aid in coping with legal problems," and will not stop their decisions from "impair[ing] defense on the merits" if they submit to testing. Id. at 833 (citations omitted) (internal quotation marks omitted). In my view, Rosenbush was in no different position than the driver in Friedman , and thus, she was entitled under the Minnesota Constitution to exercise her limited right to counsel.
The court is right that a search warrant aids a driver in " 'meeting his adversary,' " Friedman ,
Last, the court asserts that changes to the Minnesota Impaired Driving Code have made a driver's choice less meaningful than it was when we decided Friedman . According to the court, because test failure and test refusal have similar criminal penalties, drivers no longer need counsel to explain the legal ramifications of either option. This is a faulty premise. There is still a meaningful difference between "the alternative choices," Friedman ,
As the court notes, first-time test refusal is a gross misdemeanor and first-time test failure is a misdemeanor when no aggravating factors are present. See Minn. Stat. §§ 169A.26 -.27 (2018). But while these offenses might sound similar, they carry significantly different penalties. A driver found guilty of a misdemeanor may be sentenced to 90 days in jail and given a $1,000 fine. Minn. Stat. § 169A.03, subd. 12 (2018). A driver found guilty of a gross misdemeanor, on the other hand, is subject to 1-year imprisonment and a $3,000 fine.
Similarly, the severity of a driver's license revocation is different based on whether that driver failed or refused a test. A driver who submits to a test but fails is subject to a 90-day license revocation if no aggravating circumstances are present.
*103Minn. Stat. § 169A.52, subd. 4(a)(1) (2018). That same driver who refuses a test is subject to a 1-year revocation.
Thus, drivers must make a decision between two meaningfully different choices: comply with a test and risk failing, which could result in up to 90 days in jail and a 90-day license revocation; or refuse and almost certainly receive a test-refusal conviction, which carries a penalty of up to 1 year in jail, as well as a 1-year license revocation under the implied-consent law. Yet the advisory gives drivers none of this information. Drivers are told only that "refusal to submit to a blood or urine test is a crime."
For the above reasons, I conclude that the presence of a search warrant should not deprive drivers of the limited right to counsel recognized in Friedman . Minnesota law explicitly gives drivers the choice to refuse to submit to a warrant, see
Although I conclude that the results of Rosenbush's blood test should be suppressed, my conclusion has nothing to do with the behavior of the sheriff's deputy in this case. To the contrary, the deputy followed the correct procedures under the newly enacted law, read the advisory as he was supposed to, and properly responded to Rosenbush's distressed mental state. In particular, he noticed that Rosenbush had recent cuts on her wrists, inquired about them, called a crisis center for advice, and arranged for Rosenbush to be taken to a hospital for a mental health evaluation. Thus, while I would suppress the results of Rosenbush's blood test, I also note that the deputy's behavior in this case appears to have been commendable.
When Friedman was arrested on March 12, 1989, test refusal carried no criminal penalty. See
Dissenting Opinion
I join in the dissent of Justice Hudson.
Dissenting Opinion
I join in the dissent of Justice Hudson.
Opinion of the Court
In 2017, a sheriff's deputy arrested appellant Jennifer Rosenbush for driving while impaired ("DWI") and obtained a search warrant to take a sample of her blood for alcohol concentration testing. When the deputy presented Rosenbush with the search warrant, he read her the newly enacted implied-consent advisory for blood and urine tests. It informs drivers only that "refusal to submit to a blood or urine test is a crime." See
The State charged Rosenbush with fourth-degree DWI and Rosenbush moved to have the results of her blood test suppressed. She argued that, under our decision in Friedman v. Commissioner of Public Safety ,
FACTS
On July 23, 2017, police stopped Rosenbush on suspicion that she had driven into a ditch, hit a road sign, and left the scene of the accident. When questioned by a Dakota County sheriff's deputy, Rosenbush admitted that she had been in the accident. She also smelled mildly of alcohol, was crying, and was slow to respond to questions. The deputy questioned Rosenbush further, and she told him that she had consumed "two to three beers" earlier that day. In addition, when asked how intoxicated she felt on a scale from one to ten, she said four. The deputy asked Rosenbush to step out of her vehicle and perform field sobriety tests, but she refused. Eventually, Rosenbush cooperated with a preliminary breath test, and it showed that her alcohol concentration was over the legal limit.
The deputy arrested Rosenbush for DWI. Instead of taking her to jail, however, an ambulance took Rosenbush to a hospital to be placed on a mental health hold because she told the deputy that she was feeling suicidal. While Rosenbush was *94being transported to the hospital, the deputy's supervisor obtained a search warrant for a blood sample from Rosenbush. The supervisor faxed the warrant to the hospital, and the deputy gave it to Rosenbush when he arrived. After serving Rosenbush with the warrant, the deputy read her the implied-consent advisory for blood and urine tests required by
The State charged Rosenbush with fourth-degree DWI, Minn. Stat. §§ 169A.20, subd. 1(1), 169A.27 (2018).
The State appealed the district court's pretrial suppression order and the court of appeals reversed. The court of appeals reasoned that Rosenbush was not presented with the same "unique choice" as the driver in Friedman because the deputy did not "ask[ ] Rosenbush whether she would agree to take a blood test or [tell] her that no test would be given if she chose not to submit." State v. Rosenbush , No. A18-0377,
We granted Rosenbush's petition for review.
ANALYSIS
The issue before us is whether a driver arrested on suspicion of DWI, read an implied-consent advisory, and presented with a search warrant authorizing a search of her blood has the right "to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing" under Article I, Section 6 of the Minnesota Constitution. Friedman v. Comm'r of Pub. Safety ,
Article I, Section 6, of the Minnesota Constitution provides: "In all criminal prosecutions the accused shall ... have *95the assistance of counsel in his defense." We have held that this right applies at all "critical stages" of a criminal prosecution. Friedman ,
To analyze Rosenbush's right-to-counsel claim, we must first address our case law that sets out when a request for alcohol concentration testing under the implied-consent law is a "critical stage" of a criminal prosecution under the Minnesota Constitution. We must also address recent changes to the implied-consent law that are relevant to Rosenbush's claim. We begin with an explanation of Minnesota's implied-consent law.
The implied-consent law mandates-as a condition of the privilege to drive in Minnesota-that any person who is in physical control of a motor vehicle within the state "consents ... to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of ... an intoxicating substance." Minn. Stat. § 169A.51, subd. 1(a) (2018). If a person does not honor that condition and refuses to permit chemical testing, the law requires that "a test must not be given." Minn. Stat. §§ 169A.52, subd. 1, 171.177, subd. 13 (2018). But as a consequence of the refusal, the Commissioner of Public Safety must revoke that person's driver's license. Minn. Stat. §§ 169A.52, subd. 3, 171.177, subd. 4 (2018). License revocation is only available if police read a driver the implied-consent advisory when requesting a test. Minn. Stat. §§ 169A.51, subd. 2, 171.177, subd. 1 (2018) ; see also Tyler v. Comm'r of Pub. Safety ,
In Friedman v. Commissioner of Public Safety , we addressed whether suspected impaired drivers had a right to counsel under the Minnesota Constitution when deciding whether to submit to implied-consent testing.
We reversed Friedman's license revocation and held that "a driver who has been stopped for a possible DWI violation and has been asked to submit to a chemical test" under the implied-consent law "is at a 'critical stage' in DWI proceedings, thus triggering the right to counsel" under the Minnesota Constitution.
Friedman did not, however, provide a limited right to counsel to all suspected impaired drivers who were asked to submit to chemical testing. Instead, "the limited right to counsel recognized by Friedman is triggered only when the implied-consent advisory is read." State v. Hunn ,
When Friedman was decided, the implied-consent law used the same procedure for breath, blood, and urine tests. See
Under the new law, the procedures for obtaining breath tests and administratively revoking a driver's license based on the failure or refusal of a breath test remain substantively untouched and are codified in the same statutes. See Minn. Stat. §§ 169A.51 - 169A.53 (2018). For blood and urine tests, however, the implied-consent law now requires that such tests "be conducted only pursuant to a search warrant ... or a judicially recognized exception to the search warrant requirement." Minn. Stat. § 169A.51, subd. 3. In addition, blood and urine tests must now be conducted under the procedures set out in
The noteworthy differences between the new statutory provisions for blood and urine tests and the previous implied-consent law are the warrant requirement and a new fluid-test advisory. The advisory for breath tests remains the same in all relevant aspects, and continues to require that police inform drivers of the limited right to counsel announced in Friedman . Minn. Stat. § 169A.51, subd. 2.
Rosenbush argues that the consequences of her decision to submit to a blood test under the new statute are identical to those that the driver in Friedman faced, regardless of the presence of a warrant. According to Rosenbush, the deputy invoked the implied-consent statute by reading the applicable advisory just as the officer in Friedman did. Therefore, Rosenbush asserts, just like the driver in Friedman , she had two options: submit to a chemical test and give the police potentially incriminating evidence, or refuse and have her license automatically revoked. Rosenbush argues that, faced with the same choice, she should have the same limited right to counsel as the driver in Friedman .
Even though Rosenbush did have the choice to refuse testing or comply with the warrant,
Further, the existence of a search warrant eliminates many of the concerns that led us to expand the right to counsel in Friedman . The Fourth Amendment protects "personal privacy and dignity against unwarranted intrusion by the state," by generally requiring that police obtain a search warrant before searching a person or place. Schmerber v. California ,
Moreover, changes to the Minnesota Impaired Driving Code have made a driver's choice less meaningful. At the time Friedman was arrested, the consequence for test refusal was immediate license revocation-a civil penalty.
In sum, the presence of a warrant ameliorates the concerns that we articulated in Friedman . We are confident that conducting a search pursuant to a lawful warrant adequately safeguards the "human rights [and] human dignity" about which we were concerned in Friedman and supplies meaningful "procedural protection for the rights of the criminally accused."
We hold that the limited right to counsel under the Minnesota Constitution recognized in Friedman does not apply when a driver is presented with the choice to submit-or not to submit-to a blood test pursuant to a search warrant. Accordingly, the district court erred in suppressing the blood-test results on that ground.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
Dissenting, Hudson, Chutich, Thissen, JJ.
DISSENT
The State also charged Rosenbush for leaving the scene of the accident under
This case involves a pretrial appeal by the State of a district court's suppression order. See Minn. R. Crim. P. 28.04, subd. 2. To file such an appeal, the district court's pretrial order must have "a critical impact on the State's case." State v. Stavish ,
In doing so, we interpreted the right to counsel under the Minnesota Constitution more broadly than the Sixth Amendment right to counsel in the United States Constitution. See United States v. Gouveia ,
The right to counsel announced in Friedman has been coined a "limited" right to counsel because the exercise of this right cannot " 'unreasonably delay the administration of the test.' "
See Birchfield v. North Dakota , --- U.S. ----,
Specifically, the breath-test advisory requires that "[a]t the time a breath test is requested" an officer must inform the person: "(1) that Minnesota law requires the person to take a test ...; (2) that refusal to submit to a breath test is a crime; and (3) that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test." Minn. Stat. § 169A.51, subd. 2.
In the alternative, Rosenbush argues that the new advisory for blood and urine tests is unconstitutional on due process grounds because "it provides only a single crumb of information regarding a driver's rights and obligations." But Rosenbush raised this argument for the first time in her petition for review. Accordingly, it is not properly before us. See, e.g. , Dykes v. Sukup Mfg. Co. ,
Although police are generally permitted to use reasonable force in executing a search warrant, see
To be clear, however, the presence of a warrant does not guarantee the constitutionality of a search. A driver faced with a warrant still has the opportunity to challenge that warrant's probable cause before trial. See State ex rel. Rasmussen v. Tahash ,
Drivers also faced the possibility that they would be convicted of driving while impaired if the State had enough evidence to sustain a conviction without a chemical test. See
The dissent argues that the criminal penalties for refusal and failure are still significantly different. But this is not always true. For example, second-time test refusal and second-time test failure (with no additional aggravating circumstances) are both gross misdemeanors subject to the same 1-year maximum jail sentence. See Minn. Stat. §§ 169A.25 -.26 (2018). Further, these penalties represent the maximum-not the presumptive-jail sentence. Accordingly, the differences between the criminal penalties for refusal and failure are not as stark as the dissent claims.
Reference
- Full Case Name
- STATE of Minnesota v. Jennifer Marie ROSENBUSH
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- 3 cases
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- Published