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Clay prosecutor to strike judge from DWI test refusal cases

MOORHEAD — Clay County’s top prosecutor may ask for a judge to be removed from future criminal cases in which a driver is accused of refusing a blood alcohol test.

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Clay County Attorney Brian Melton said Judge Steven Cahill has failed to follow state law in throwing out two such cases in which suspected drunken drivers were charged under a state law that makes refusing alcohol testing a crime.

Melton said the Minnesota Court of Appeals issued a ruling in March that upheld implicit consent laws as constitutional — yet Cahill has failed to follow that ruling, twice.

“We have to abide by the law, we follow the law,” Melton said. “A judge can’t ignore the law.”

In one case, a driver was arrested in February after a police officer alleged she showed slurred speech, difficulty opening her car door and a strong odor of alcohol. She refused a breath test at the jail because of her “mental disabilities,” Cahill’s order said.

In another case, a man who police said showed symptoms of intoxication was arrested in January after a minor car crash.

That man already had two prior drunken driving convictions and refused a second test at the jail after a first breath test showed he was over the legal limit. The man said the test was against his religion.

In both cases, Cahill threw out the implied consent charge against the defendants, writing that state law improperly criminalized a test refusal, and that he disagreed with the higher court’s ruling that allows it under the law.

In his orders, Cahill referred to an earlier case decided by the U.S. Supreme Court in 2013, which held that police can’t conduct a blood test on suspects in drunken driving investigations without a warrant simply because the alcohol in their system may dissipate. The opinion in Missouri v. McNeely does mention implied consent laws as one of the “broad range of legal tools” for police to enforce drunken driving laws.

Melton said he doesn’t believe that opinion applies to implied consent laws. His office is appealing both cases to the higher court.

The prosecutor said that under state law, both the prosecution and the defense are allowed to strike a judge one time per case for any reason. Either side has seven days after the judge is assigned to make a motion to strike, Melton said, and it can’t be done after that judge has held certain types of hearings or after a trial.

Cahill was reprimanded in April by the Minnesota Board on Judicial Standards for, among other things, a string of failures to follow the law, according to the board’s findings.

None of the cases in which the board found a failure to follow the law involved implied consent, and Melton said he had not brought any of those types of cases before the board before it issued its order.

The board ordered Cahill to find a proposed mentor and take steps to stop his misconduct.

Cahill couldn’t be reached for comment Monday.