No Right To Consult With Counsel Prior to Deciding to Submit to Blood or Urine Testing in a DWI

In Birchfield v. North Dakota, the United States Supreme Court ruled that states could criminalize the refusal to a breath test, but could not criminalize refusal of a blood or urine test absent a warrant. After this case, Minnesota created a separate statute to deal with blood or urine testing pursuant to a warrant. That statute only required law enforcement to inform the driver that refusal to submit to a search warrant for blood or urine was a crime. No right to counsel was included in this new statute.

In Rosenbush, the driver was presented with a search warrant for her blood, however, law enforcement never provided her with an opportunity to consult with counsel. Rosenbush argued that she had a right to counsel regardless of the type of test because of the decision in Friedman. The Minnesota Supreme Court disagreed. The court stated that a request to comply with a search warrant is not an adversarial proceeding. The court reasoned that a neutral magistrate will have already determined that there is sufficient evidence such that law enforcement can lawfully obtain a blood or urine sample. Therefore, the process is no longer adversarial.

Additionally, the accused driver can still challenge the lawfulness of the search warrant before trial. Also, the court noted that it has never held that the Minnesota Constitution provides the subject of a search warrant a right to consult with counsel prior to a search warrant being executed. If law enforcement shows up at a residence with a search warrant, the resident has no right to call an attorney to determine whether they should allow the search to take place.

In short, if law enforcement requests that you submit to a breath test, you have a right to consult with counsel prior to making a decision. If law enforcement requests that you submit to a blood or urine test and they have a search warrant, you have to make the decision on your own.