Probable Cause and Blood Rulesadvocatelogo2

by Richard Schroeder

Police should be permitted to order the nonconsensual removal of blood whenever they have probable cause to believe the driver has committed criminal vehicular operation, regardless of the level of severity of the suspected offense.

Minnesota Court of Appeals

April 1998

If you choose to drink and drive a motorcycle, a car, a boat or anything, you have even less control over the situation than you may know. A predawn motorcycle accident last spring illustrated this important point of law. In April, 1997, an accident involving only a motorcycle (with driver and passenger) at 3:10 a.m. tested the rights of drivers suspected of committing a crime while operating a vehicle.

At first, the officer who arrived on the scene did not suspect the driver of being legally intoxicated (blood tests later confirmed the driver had a .15 blood alcohol content). Rather, the officer arranged for the badly injured driver to be taken to the local hospital. The officer then took the less injured passenger to the hospital for x-rays of her arm.

On the trip to the hospital, the passenger indicated that she had been drinking, but she was unaware whether or how much the driver of the motorcycle may have drunk. Based on the passenger’s statements, the officer attempted to gain the driver’s consent for a blood test to determine whether the driver was driving while intoxicated (DWI). The driver denied the officer’s request. The officer proceeded anyway with the blood test, because he suspected the driver of criminal vehicular operation.

Months later in court, the driver’s lawyer asked that the blood tests be thrown out as evidence of the charges that the driver had been DWI. The district court agreed that the evidence should not be admitted, since the officer asked for the driver’s consent and was refused.

The county attorney seeking to prosecute the driver appealed the case to the Minnesota Court of Appeals. The Court of Appeals heard the case and sided with the driver. Indeed, after refusing to give consent to the blood test, it should not have been ordered. The court stated that the officer was “arguably authorized to order the nonconsensual removal of [the driver’s] blood,” but the officer had no probable cause on which to obtain a blood test without the driver’s consent.

There are two issues at play in this case: probable cause and nonconsensual/consensual removal of blood. Each requires further explanation and context.

Probable Cause

In order to be charged with criminal vehicular operation (CVO), there must be probable cause assessed to warrant further investigation of the situation. Probable cause is the set of clues that would lead one to believe that a person had committed a crime. With respect to driving while intoxicated, it would include the odor or physical presence of alcohol, bloodshot eyes, slurred speech or similar characteristics.

In this particular case, the Court of Appeals wrote, “because [the officer] did not have probable cause to believe that Lee had been drinking, and therefore lacked probable cause to believe that Lee had committed CVO, he [the officer] did not have grounds to order nonconsensual blood testing.”

Blood Rules

In some instances, an officer must ask you for permission to sample your blood. In others, he or she has a green light to do so as part of their investigation. In the 1980 case, State of Minnesota v. Aguirre, authorities were given a “bright line” rule–a blood test may be taken without reading the implied consent advisory if there is probable cause to believe the driver has committed criminal vehicular operation. This includes felonies (big injuries and lots of damage) and gross misdemeanors (like a DWI with or without minor injuries and damage).

A Different Ending

If the officer had found probable cause to think the driver had been drinking, the motorcyclist’s blood alcohol test could have been used against him. For example, if the driver had smelled like a brewery, or if the passenger had witnessed the driver drinking and thus reported more details to the officer, the officer could have had probable cause, and this story could have had a different ending.

So, if you choose to drink (to a point of legal intoxication) and drive any vehicle, you assume some serious legal risks and could potentially lose some of your rights. These are in addition to the other risks…like injury and death. The best way to protect yourself legally and physically is this: if you are going to drink, do not operate a motor vehicle.


Richard Schroeder is an attorney with Michaelson, Schroeder & Mandel. Licensed in Minnesota and Wisconsin, Mr. Schroeder handles cases involving motorcycle and auto accidents, personal injury, insurance disputes, and product liability.

This column is intended to provide general information and is not to be construed as legal advice or legal opinion on any certain facts or circumstances. Minnesota Motorcycle Monthly encourages readers to consult legal counsel on any specific legal questions or matters.

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