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Theoretical Warrant Kills Actual Constitutional Right: State v. Bernard

Fittingly, the Minnesota Court of Appeals issued a new DWI decision on St. Patrick’s Day. In State v. Bernard, the Court faced the issue of whether prosecuting someone for DWI test refusal was constitutional in light of the limited exceptions to warrants pronounced by the U.S. Supreme Court last summer. Ultimately, the Court held that prosecution for test refusal was legal but its legal reasoning stretches at the seams. The Court pinned its analysis on the existence of a “theoretically available” warrant. However, Constitutional protections should be stronger than merely “theoretical.”


For years Minnesota has criminalized the refusal to take a DWI test if probable cause exists that a person drove while drunk. This law has been characterized as an officer-safety law. It prevents police officers from having to dangerously take a blood, breath, or urine sample from someone who refuses to cooperate. To support its legality, courts held that police officers were entitled to take a sample without a warrant due to the exigent circumstances of alcohol dissipation. So, because police officers could take a sample regardless of consent, criminalizing refusal did not impair anyone’s 4th Amendment rights to be free from searches and seizures.

The Foundation Falls Apart

Last summer, the U.S. Supreme Court held that the dissipation of alcohol in the bloodstream is not a sufficient reason to avoid getting a warrant given the prevalence of mobile phones and technology to facilitate obtaining a warrant at any time, usually within 15 minutes. In Minnesota, this changed the landscape because the test refusal law was founded on the principle that the exigent circumstances requirement would have allowed a test with or without consent or a warrant. Minnesota courts have been struggling with the fallout since the decision.

The New Excuses

Last fall, the Minnesota Supreme Court issued a decision stating that the death of the exigency exception did not destroy the test refusal law. In that case, the driver agreed to take a test under penalty of being prosecuted for refusal if he didn’t. The Court held that the driver consented to the test, so no warrant was required. It doesn’t take a legal expert to see the glaring issue: what kind of consent is it if you’re forcing someone to make a decision under criminal prosecution? Regardless, the Court seemed unable to envision a future without the refusal law and grasped at the legal straw available. However, it did not have to face the truly difficult scenario: one where the driver refuses to consent and triggers 4th Amendment protections.

State v. Bernard

That scenario was at issue in State v. Bernard. In that case, the driver refused to take the DWI test and was prosecuted for test refusal. At no point did the police even attempt to get a warrant, and the other exceptions, such as exigency seemed unavailable. However, the Court jukes awkwardly around the 4th Amendment and holds that because probable cause existed, the police theoretically could have gotten a warrant. Because of the theoretical warrant, a test could have been compelled, so the punishment for refusal is ok. Pay no mind that this holding completely eviscerates the warrant requirement, allowing the police to substitute for an independent judge in the determination of probable cause. The Court’s new standard is basically: if a police officer could apply for a warrant for a search, then they can compel the search under penalty of law without applying for a warrant.

I’m a pretty even-handed person, and I don’t like to overly exaggerate things, but this strikes me as some of the most flawed legal reasoning I have seen in modern jurisprudence. It is a sad time when a person’s actual Constitutional rights are wiped out by theoretical possibilities. My only hope is that this decision is reviewed and that the right to be free from unreasonable searches and seizures is restored.