State's high court: No right to lawyer for DWI suspects given search warrant for blood

The state's highest court narrowly ruled Wednesday that a motorist suspected of drunken driving is not constitutionally entitled to consult an attorney before submitting to a search warrant for a blood sample.

The 4-3 vote upholds an earlier Court of Appeals ruling that it was legal to take blood from Jennifer Rosenbush, who crashed her vehicle into a ditch in Dakota County on July 23, 2017, and was suspected at the scene of being drunk.

Rosenbush, now 48, of Lakeville, was taken to a hospital and given a copy of a search warrant ordering her blood be tested for intoxication. The deputy did not give Rosenbush the opportunity to consult with a lawyer before her blood was drawn.

The sample measured her blood alcohol content at 0.113%, above the legal limit for driving in Minnesota, leading to a charge of misdemeanor fourth-degree drunken driving.

Had she refused the test, she would have been charged with a gross-misdemeanor drunken driving count.

Even if Rosenbush had a chance to contact a lawyer that day, her choices would have remained the same: agree to be tested and subjected to the misdemeanor count or refuse and face the more serious drunken-driving charge.

Rosenbush filed a motion to suppress the test results as evidence because of her lack of access to legal counsel.

In upholding the appellant panel's ruling, Supreme Court Justice Anne K. McKeig wrote for the majority that "right to counsel under the Minnesota Constitution ... 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."

The majority went on to reason that presenting to a suspected impaired driver a search warrant for a blood or urine test is not the act of an adversary but of a "neutral judicial officer [who] has determined that the police may lawfully obtain a sample of the driver's blood."

Joining McKeig were Chief Justice Lorie Gildea, and justices G. Barry Anderson and David Lillehaug.

Assistant Dakota County Attorney Kathy Keena lauded the ruling.

"The Supreme Court issued the right decision today. The [deputy] followed the right procedure" based on the law, she said. If the vote had gone the other way, Keena added, that would have opened up the door to challenges of other cases in the state filed under similar circumstances.

"No one has the right to refuse the search of a residence" if so ordered by a court, she said.

Dissenting votes were cast by justices Natalie Hudson, Margaret Chutich and Paul C. Thissen.

Hudson wrote that she and her fellow dissenters "focused on a driver's need for an objective advisor to explain the alternative choices and different legal ramifications arising from the decision to refuse or allow a chemical test in this situation."

The three in the minority saw that Rosenbush had but two options: submit to a chemical test and give the police potentially incriminating evidence, or refuse and have her license automatically revoked and potentially be convicted of drunken driving.

"We reasoned that a driver must make a critical and binding decision regarding chemical testing, a decision that will affect him or her in subsequent proceedings, and that when making such a decision, an attorney, not a police officer, is the appropriate source of legal advice."

Attorney Daniel Koewler, of the Minnesota Association of Criminal Defense Lawyers, joined Rosenbush's side in the case and said in response to the Supreme Court's ruling Wednesday, "The right to counsel has served Minnesota very well."

But in the case of suspected drunken drivers under arrest, "You're literally out of luck," he said. "Law enforcement will rely on this decision and say no, you can't" speak with an attorney first.

Koewler said officers still have the ability to give a drunken-driving suspects the opportunity to contact an attorney, "but it would be an act of charity. It wouldn't be an act based on the law."