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From Minnesota Lawyer

Tuesday, May 23, 2017  
Posted by: Laura Fenstermaker
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Ruling: No relief from final DWI convictions


In 2016, a triad of cases upended intoxicated-driving law in Minnesota. But not for Wesley Eugene Brooks, who was convicted in a triad of cases of his own. But the changes in the law were federal constitutional procedure and had no retroactive effect on Brooks’ postconviction proceedings, the Court of Appeals held recently.

In Brooks v. State, the court said, “We conclude that the rules announced in Birchfield [v. North Dakota], [State v. ]Thompson, and [State v.] Trahan regarding the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement are new rules of federal constitutional criminal procedure that do not apply retroactively on collateral review of appellant’s final convictions,” Judge Michelle Ann Larkin wrote the opinion.

Third time not a charm

After three arrests in close succession and a string of court proceedings including a trip to the U.S. Supreme Court, Brooks was shut out by the Court of Appeals in in quest for postconviction relief.

Brooks was arrested in Scott County on July 31, 2009, and gave a urine test after being advised that refusing to take a test is a crime. He had a blood alcohol concentration of .14. On Jan. 16, 2010, Brooks was arrested in Hennepin County and agreed to give a blood sample, which showed a BAC of .16. On Jan. 25, 2010, Brooks was arrested again in Scott County and his urine sample revealed an alcohol concentration of .16.

The Scott County District Court denied Brooks’ motions in both cases to suppress the urine tests, concluding that the warrantless searches were reasonable under the exigent-circumstances exception to the Fourth Amendment’s warrant requirement. The Hennepin County District Court found Brooks had consented to the blood test. He was convicted in all three.

The U.S. Supreme Court vacated the convictions after Missouri v. McNeely, which held that the natural dissipation of alcohol in the blood does not constitute a per se exigency justifying a warrantless search.

The Court of Appeals reinstated Brooks’ appeals and the Supreme Court said the searches were reasonable under the consent exception to the warrant requirement and affirmed Brooks’ convictions.

The postconviction courts found the claims barred under Knaffla because they should have been raised in direct appeal, and that the case law did not apply retroactively because Brooks’ convictions were final before the cases were decided.

In Birchfield v. North Dakota, the U.S. Supreme Court said that the Fourth Amendment permits a warrantless breath test but not a warrantless blood test, and that a criminal test-refusal charge based on what would have been an unlawful search violates the Fourth Amendment. In State v. Trahan, the Minnesota Supreme Court applied Birchfield and said that a warrantless blood test was not an exception to the Fourth Amendment and the test-refusal charge violated the Fourth Amendment. In State v. Thompson, the court also said that a warrantless urine test did not fall within the search incident to arrest exception to the Fourth Amendment and the test-refusal charge was unconstitutional.

The court limited its review of the retroactivity of the cases to the question of a prior judicial determination that consent to testing was voluntary.

New federal rules of constitutional procedure are applied retroactively only if they place certain kinds of conduct beyond the power of the authorities to proscribe or constitute watershed rules of criminal procedure. Brooks did not argue that these circumstances, known as Teague exceptions, were met.

However, Brooks argued that the cases did not announce new rules of law. The Court of Appeals disagreed. It said that the Birchfield court found no definitive guidance from the founding of the Constitution as to whether blood alcohol tests should be allowed incident to arrest, and thus it examined the degree of intrusion into privacy and their necessity for promotion of legitimate government interests.

The court also noted that McNeely was not applied retroactively on collateral review because it changed the law about exigent circumstances.

“Based on the Supreme Court’s statement in Birchfield that definitive guidance was lacking and this court’s treatment of the McNeely rule as new, we conclude that Birchfield, Thompson, and Trahan announced new rules of federal constitutional criminal procedure that do not apply retroactively on collateral review of a final conviction unless one of the Teague exceptions applies,” the court concluded.

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