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Minnesota: Appeals Court Expands DUI Implied Consent Reach
Court of appeals in Minnesota removes requirement to obtain a warrant before obtaining a urine sample from motorist accused of DUI.

Judge Thomas J. Kalitowski
Anyone accused by a police officer in Minnesota of driving under the influence of alcohol (DUI) can be compelled to produce a urine sample without a warrant, according to a June 27 decision by the state court of appeals. A three-judge panel weighed the case of Kim Marie Ellingson who had been stopped for speeding after midnight on May 3, 2009. The officer later arrested her for DUI.

Just days before, the state supreme court handed down its decision in the case of Minnesota v. Underdahl forcing disclosure of the source code that governs the operation of the Intoxilyzer 5000EN breath testing machine. The revelation allowed defense attorneys to uncover flaws in the device's operation. Prosecutors put thousands of cases on hold. Most jurisdictions switched to blood or urine testing to avoid the breath machine's problem.

Precedent already allowed police to take blood or breath without a warrant, although physical force could not be used without a judge's prior approval (view decision). No clear directive existed for warrantless urine collection. Nonetheless, a police officer insisted Ellingson provide such a sample under the implied consent statute. At trial, Ellingson insisted the police should have first obtained a warrant, as required by the Fourth Amendment.

"One exception to the warrant requirement is the existence of exigent circumstances," Judge Thomas J. Kalitowski wrote for the three-judge panel. "Exigency can be created by a single factor, in which case consideration of the totality of the circumstances is unnecessary."

To get this result, the prosecution's expert witness claimed waiting just fifteen minutes could cause a blood alcohol reading in the bladder to decrease by 0.002 -- enough to change a .081 conviction into a .079 acquittal.

"Appellant is correct that the forensic scientist testified that alcohol in the bladder is not destroyed by the body's natural processes in the same way as alcohol in the blood is destroyed," Kalitowski wrote. "But the record supports the district court's finding that the body's natural processes cause the alcohol concentration of urine to change rapidly."

Under this reasoning, the court affirmed Ellingson's conviction. A copy of the ruling is available in a 100K PDF file at the source link below.

Source: PDF File Ellingson v. Commissioner of Public Safety (Court of Appeals, State of Minnesota, 6/27/2011)

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