In State v. Bernard, the Minnesota Supreme Court considered whether a Minnesota law criminalizing refusal to take a DWI breath test was unconstitutional. The Court held that the law does not violate a person’s fundamental rights under the constitution, and the refusal law is a reasonable means to allow an officer to respond to a person’s objection to take a DWI test. Here is an overview of the decision and its significance:
Minnesota’s Test Refusal Law
In Minnesota, it is a crime to refuse a breath, blood, or urine test when you have been arrested for a possible DWI. The stated purpose of this law is to obtain the cooperation of the defendant to get a test sample and to prevent police officers from having to forcibly obtain a sample against a person’s wishes. Despite many legal challenges over the years, the regime has remained unscathed until the U.S. Supreme Court decision in Missouri v. McNeely in 2013. That decision held that an involuntary blood draw is a search under the 4th Amendment, and police must obtain a warrant before conducting the search. In response, Minnesota attorneys filed legal challenges claiming that Minnesota’s laws, which allow for warrantless DWI tests or punishment for refusal violated the Constitution.
State v. Bernard
The central argument by the defendant in Bernard is that the state can’t criminalize his ability to assert his 4th Amendment right to be free from unreasonable searches. The Minnesota Supreme Court sidestepped this argument by holding that the breath test would have been lawful without a warrant, so there was no Constitutional right to avoid the test. The Court stated that a breath test could have been conducted under an exception allowing police to conduct a search incident to the arrest. Significantly, the Court held that a breath test is not so intrusive as to trigger 4th Amendment concerns when a person is under arrest. However, the Court left open the question of whether a blood or urine test would trigger 4th Amendment concerns.
Next, the defendant argued that the refusal law violated his substantive due process rights–essentially, that the criminalizing his refusal was wrongful for the government to do. However, because the Court previously concluded that a breath test would have been a lawful search, the Court quickly dismissed the challenge and held that the law further a public policy of obtaining DWI test samples and punishing drunk drivers.
Two justices dissented, arguing that the majority improperly limited the holding of McNeely and expanded the search incident to arrest exception. The dissent considered a breath test to be of a different character than the typical pat-down allowed in a search incident to arrest that is often used to find potential weapons and protect officers. In addition, the dissent considered a forced breath test to be substantially more invasive than a quick pat-down to determine the objects on a person’s body or within the person’s immediate area. Ultimately, the dissent considered the refusal law unconstitutional because it criminalized a person’s right to be free from an illegal search.
Although the Bernard decision provides one answer–namely, that punishing a person for refusing a breath test is permissible–it leaves the door open for a harder question: would a more intrusive test, such as blood or urine, still fall under the search incident to arrest exception? It is hard to argue that a blood draw or urine sample are the same character as blowing into a tube for a few minutes. Unfortunately, the question still lingers, so uncertainty regarding the full application of the refusal law remains. In addition, the U.S. Supreme Court has not yet determined the constitutionality of refusal laws in the wake of McNeely. So, while this battle has been won by the prosecutors, the war remains undetermined.