In the late spring of 2011, the Minnesota Court of Appeals considered an interesting driver’s license revocation case, Swanson vs. Commissioner of Public Safety. In this case the Petitioner challenged his driver’s license revocation that resulted from a urine test taken after a DWI arrest showing an alcohol content over 0.08. Petitioner’s driver’s license revocation was suspended by the district court, and he appealed teh district court’s order to the Minnesota Court of Appeals. Petitioner argued that the police officer should have been required to obtain a search warrant before getting Petitioner’s urine sample. Petitioner also argued that a search warrant was required because his consent to the urine test was coerced because he was threatened that “refusal to take a test is a crime.” Therefore, Petitioner’s agreement to take a urine test was not freely and voluntarily given, and in the absence of a search warrant, Petitioner argued that the test was illegal.
The courts’ position on testing as related to suspected DWI offenses is that a search warrant is not required. Due to the rapid dissipation rate of alcohol, courts have held that alcohol testing falls under the exigency exception, and as such it is not feasible for an officer to contact a judge to have a search warrant issued prior to testing a suspect for alcohol. This search warrant requirement, the courts have reasoned, would result in the eradication of the evidence of alcohol. Petitioner argued that this reasoning as it pertains to urine testing is incorrect. Petitioner had an expert in DWI testing testify that there is no risk of dissipation of alcohol in urine. As a person ingests alcohol, it collects in his bladder. The only way the alcohol can exit the person’s bladder is if the person voids his bladder because it will not dissolve while still in the bladder. Unlike blood and breath tests, the alcohol in urine does not work through the person’s system and evaporated over time, rather it pools in the person’s bladder. As such, Petitioner argued, there was no reason the officer did not have had time to get a search warrant, and no exigent circumstances exemption applied. The district court upheld Petitioner’s driver’s license revocation finding that exigency existed because a driver suspected of DWI can void his or her bladder and the alcohol would be eliminated. Consequently, the district court determined that the officer did not have to obtain a search warrant.
Because the district court found there were exigent circumstances for the officer to obtain a urine test from Petitioner without a search warrant, the court did not address Petitioner’s argument that his consent to test was coerced. The Court of Appeals remanded the case back to the district court to make a decision on the coerced consent issue. “The warrantless search of Swanson’s urine was permissible if either or both of the two exceptions of consent and exigency apply.” However, if the Court of Appeals determined that the exigency exception did not apply, the Court of Appeals would have to decide if the consent exception applied. The Court of Appeals could not review the district court’s findings of whether the consent exception applied because none were made.