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Criminal Law Section Newsletter | October 2013


McNeely/Brooks Update

The Minnesota Supreme Court issued its long-awaited opinion in State v. Brooks on Wednesday, October 23.  Brooks is our state version of the U.S. Supreme Court’s watershed case McNeely v. Missouri, 133 S.Ct. 1552 (2013), decided April 17, 2013, which held that the natural dissipation of alcohol over time does not create a per se exigency and thus, depending on the facts of each case, police may be required to obtain search warrants from drivers who do not consent to a blood draw to measure their alcohol concentration. 

Brooks concerned a driver convicted of three separate felony DWI cases, two in Scott County, and one in Hennepin County. He took two urine tests and one blood test, in the three cases respectively. The convictions were vacated by the U.S. Supreme Court just days after McNeely was decided, and remanded to the Minnesota Court of Appeals for reconsideration in light of the decision in McNeely.  The Minnesota Supreme Court then granted the State’s petition for Accelerated Review to expedite the resolution of this important issue with clear statewide impact, which affects every single pending DWI case in the state (including test refusal cases). 

In the Brooks decision issued on October 23rd, the Supreme Court found that under the totality of the circumstances present in each incident, the defendant had consented to the chemical tests requested, thus making the results admissible.  Notably, the Court did not address the constitutionality of Minnesota’s Implied Consent law, but instead stated that Brooks’ argument – that the criminal penalties attendant to refusal made any consent “coerced” – was an insufficient showing that the law was unconstitutional.  In short, it was a narrow holding from the Court, and one that may resolve some currently pending cases while leaving open the possibility for renewed appeals in other current and future cases.

The Criminal Law Section is currently planning an Update CLE on the Brooks holding and how it impacts criminal law practice in Minnesota for the very near future.  Please watch for notices on this informative and critical program.


Strategic Planning
The Criminal Law Section Council met in August to discuss its purpose and potential projects and initiatives for the upcoming year.  Members determined that they would like the Criminal Law Section to be viewed as an authority in the area of criminal law and procedure.  Members determined to undertake the following projects:

  • Create an online resource for practitioners that documents the local rules and procedures for accomplishing common actions (e.g., how to set bail, whether there is a weekend judge on call, whether certain actions can be done by phone/paper or must be done in person).

  • Develop a proposal to amend the telephonic warrant procedure.

  • Establish a monthly section email or newsletter.

  • Plan and present CLEs.

To join us in working on any of the projects above, please contact section staff member Nicole Battles, any section officer, or simply attend the next meeting.


Council Recap
The Criminal Law Section Council met on Wednesday, October 2, 2013.  Following are some of the highlights.

1.  CLE Planning. The Council discussed several possibilities for upcoming CLE’s, and assigned council members to take the lead on planning and development.  The CLE topics agreed to were Immigration and Criminal Law, Everything But the Trial School (January), followed by the annual Trial School (April or May), and Civil Landmines (e.g., forfeitures, expungements, and driver’s license suspension).

2.  MNCIS Access by Private Defense Attorneys. Last summer, the section sent a letter to Chief Justice Gildea asking the Supreme Court to consider amending the rules relating to access to judicial records so that private defense attorneys could have the same access to MNCIS case information that public defense attorneys currently have.  Justice Gildea sent a response indicating that the request could not be granted at the moment, but that she would convey our concerns to an internal advisory work group on access issues. Council members discussed the response and decided that it would be appropriate to send a follow up response to ask if we could attend a meeting of the advisory work group or otherwise open a channel to that group to convey our concerns.  Members noted that the access issue impacts not only the attorney but also court staff because often the attorney is forced to call the court for details about an upcoming appearance rather than being able to look it up.