Case Law Update: State v. Thompson

The State of Minnesota Court of Appeals, in State v. Thompson, held that charging a driver with violating the MN Refusal Statute implicates a fundamental right because a warrantless search of the driver's urine would not have been constitutional under an exception to the warrant requirement. Sound familiar? It is. This is the exact language used in State v. Trahan, which held that an individual cannot be charged criminally for refusing a blood test, absent a warrant exception. The Thomson Court concluded that conducting a warrantless blood or urine test would not have been constitutional under an exception to the warrant requirement, therefore charging a subject criminally for test refusal implicates his fundamental right to be free from unconstitutional searches, and the test-refusal statute as applied to warrantless blood and urine tests is not narrowly tailored to serve a compelling government interest. In short, the Thompson Court held that test-refusal statute violates appellant's right to substantive due process under the United States and Minnesota Constitutions by criminalizing his refusal to submit to a warrantless blood or urine test.

Based on Trahan and Thompson, only an offer, and subsequent refusal, of a breath test may be used as a basis for a test-refusal charge. If a subject is suspected of DUI-alcohol, offer a breath test. If a certified DMT operator is not available, the subject must consent (recognized exception to the warrant requirement) to a blood or urine test. If the subject does not consent to a blood or urine test, you cannot charge the subject with refusal and you must obtain a warrant. The refusal statute, as it relates to breath tests, remains constitutional. If you offer a breath test and the subject refuses, charge them with test-refusal. A warrantless search of the subject’s breath is still covered by the search-incident-to-arrest exception. Keep in mind that there is no requirement for a police office to offer blood or urine; an alternative test is only required if breath is not offered. If the intoxicant is a controlled substance and the subject refuses blood or urine, obtain a warrant to legally and constitutionally search the subject. Trahan has been appealed to the MN Supreme Court, so there is a possibility that this can change in the future. However, for now, please proceed accordingly.


As legislative or case law changes occur, the prosecution partners at Eckberg Lammers are available 24/7 to assist law enforcement with questions, advice and guidance.

Contact Rebecca Christensen at 651-351-2131 or by email at to talk today.

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