MN Supreme Court: Drugs can be part of DWI blood test

In May 2014, Debra Fawcett was involved in a two-vehicle crash at Minnesota Highway 65 and 109th Avenue in Blaine when she allegedly ran a red light.

A police officer smelled alcohol on her breath and she acknowledged having “two or three” beers earlier, according to court records. So the police officer asked for a warrant to draw blood.

A breath test at Mercy Hospital showed no presence of alcohol. A month later, the blood test result showed no alcohol, but it did indicate the presence of “a metabolite of tetrahydrocannabinol (THC) and Alprazolam at the time of the accident.” A subsequent search of records revealed Fawcett had a valid prescription for Alprazolam.

Months later, she was charged with criminal vehicular operation.

Fawcett’s attorney asked the blood test be suppressed because the warrant said police were searching for evidence of alcohol, not drugs. While the district court agreed, the Minnesota Court of Appeals overturned the order. (See ruling)

On Wednesday, a sharply divided Minnesota Supreme Court declined to suppress the test results, saying the search for drugs in the blood was not a separate search and didn’t require another warrant.

“From the warrant application, the issuing judge knew that it was ‘apparent’ to the officers at the scene that Fawcett was under the influence, a conclusion based on the officers’ investigation at the scene including what they saw and heard from Fawcett,” Justice Lorie Gildea wrote for the majority in today’s opinion.

Because it was “apparent” to those officers that Fawcett was impaired, it was not unreasonable for the issuing judge to infer that Fawcett’s impairment may have been caused by alcohol, controlled substances, or some combination of the two.

This is especially true when a warrant application “need not contain information providing certainty that the objects sought will be found as a result of the search.”

Under the Fourth Amendment, a search warrant must indicate what authorities are looking for. Gildea said the fact police were looking for alcohol, not drugs, does not violate that tenet.

“The search warrant in this case did not authorize general testing of Fawcett’s blood to determine her DNA, genome, or indicators of diseases because such testing would not have revealed any evidence of criminal vehicular operation/homicide,” Gildea said.

Justice David Stras disagreed, writing in his dissent:

I agree with the court that a search warrant that authorizes law enforcement to seize and test a person’s blood for intoxicants does not wipe out a person’s reasonable expectation that law enforcement will not test the blood sample for other purposes.

But I disagree with the court’s conclusion that probable cause to search for alcohol in a driver’s blood necessarily provides the police with probable cause to search for drugs.

It is not clear how the court reaches this conclusion, other than the inferences it draws from the affidavit that lead it to conclude that the issuing judge must have found that there was probable cause to search for “intoxicants, whether alcohol, controlled substances, or a combination of alcohol and controlled substances.”

Stras said the most serious problem is that there was nothing to give authorities probable cause to search for drugs in Fawcett’s blood.

Nothing about Fawcett’s demeanor, actions, or words suggested that the accident occurred because she was under the influence of a controlled substance.

The affidavit did not describe any abnormal physical characteristics, comment on Fawcett’s ability to converse with the officers, or note any other behavior that would have given reason to believe that Fawcett was under the influence of another substance in addition to alcohol.

To the contrary, two of the facts explicitly relied upon by this court—the smell of alcohol on Fawcett’s breath and the admission that she had been drinking prior to the accident — point exclusively to alcohol as the cause of the accident.

In fact, the affidavit specifically states that the “officers formed the belief” that Fawcett was “under the influence of alcohol” at the time of the collision.

Gildea responded by saying the court’s majority ruling “is based on specific facts, including the injuries, running of the red light, odor of alcohol, Fawcett’s admission that she had been drinking, and the officers’ belief that Fawcett was under the influence. Contrary to the dissent’s assertion, our analysis is neither speculative nor inconsistent with existing precedent.”

But Stras said he may not view the case as one involving probable cause.

“Rather than unnaturally stretching the concept of probable cause, as I believe the court does here, in an appropriate case and under the right set of facts, I would be open to considering whether to adopt the good-faith exception in full,” he wrote in his dissent, referring to a 1984 U.S. Supreme Court ruling in which evidence against two drug dealers was allowed, even though police didn’t have probable cause for a search warrant, because they acted “in good faith.”

That brought another dissent, this from Justices David Lillehaug and Natalie Hudson who objected to an attempt to expand the scope of search warrants through an issue not brought before the court.

“Examining the possible applicability of the good-faith exception, not stretching the concept of probable cause, would have been the proper line of analysis for determining whether to suppress the evidence,” Stras countered.

  • Postal Customer

    Why are so many DWI cases coming before the Minnesota supreme court?

    • Because they seem to be the ones that tests the 4th Amendment and Minnesota Constitution the most often, I suppose.

    • jon

      It’s an area of interest for the supreme court justices?

  • jon

    Having been labeled as “obviously impaired” by police when infact I was “not at all impaired” simply because I was driving shortly after bar close, I don’t know how to feel about this.

    I don’t support driving while high, and the only reasonable test for many drugs is a blood draw, but on the other hand, I don’t desire to have to submit to a blood draw every time a cop thinks I’m high just because I don’t fit into the mold of upstanding citizen that they are looking for.

    I mean if I’m pulled over clearly I’m not an upstanding citizen (unless your Hank Hill…)

  • X.A. Smith

    Since THC can remain in the bloodstream for 4 to 6 weeks after their use, how does the state know whether she was actually under the influence of cannabis?

    • Dan

      Separate issue. This is whether or not the evidence (the test results) should be suppressed. She can still argue at trial that the test doesn’t prove she was under the influence.

      • MikeB

        But if the test cannot prove that she was impaired at the time, why should there be a trial? Seems like the results should be relevant if deciding whether they should be used.

        • Dan


  • Dan

    It’s also, uh, interesting that she could have no alcohol in her blood but the officer could smell it on her breath.

    • // but the officer could smell it on her breath.

      Says he could smell it on her breath.

      • Dan

        (yes, I was trying to be rhetorical)

      • KTN

        But, if he could smell it on her breath, why did both the breathalyzer and blood samples not smell it too. Seems like if she had been drinking recently (as she was quoted in the decision), those two technologies would have detected what the officer says he smelled.

        Someone’s lying it appears.

  • Jeff

    So never give the police your blood, you will be forced to breathe into a machine without a warrant as per SCOTUS but if there is no warrant the police can not go any further. These types of cases will be rare from now on but the odd thing is that THC can stay in your blood for weeks…was there any attempt to prove that the woman was under the influence from the THC (smoking that day) or was it just residual and it was in her blood from days or weeks before…?

  • Jeff

    Good issues today Bob, I always find these DWI cases interesting as testing our 4th & 5th Amendment rights….and I think the prescription drug prices issue tests the limitations of government force, the unintended consequences of “keeping us safe” through the rigorous FDA testing process and if the government should in any way limit the drug patent system we currently have today.

    • KTN

      There is an interesting article over at Atlantic on Justice Scalia’s legacy regarding the 4th and 5th.

      From the article “In recent years, Scalia emerged as the Fourth Amendment’s greatest
      champion, often ruling against the police. He was particularly steadfast
      in guarding the sanctity of the home, or limiting police use of new

  • lindblomeagles

    I’m not comfortable with this liberal reading of the Constitution. While I understand the need to keep impaired drivers off the road at all times, she had a prescription for one of the drugs. If the drug is causing impairment, is it really her fault she’s driving impaired? Doesn’t she get a chance to go back to her doctor for a weaker dose?