Earlier this week, the MN Supreme Court issued its highly anticipated decision in the matter of State v. Bernard. In a 5-2 decision, the Court held that a person arrested for DWI can face additional serious criminal sanctions if they refuse to submit to an official breath test at the station/jail. This is a disappointing decision on a number of levels, most notably because it misuses federal case law AND it contradicts the MN Sup. Court’s decision in the matter of State v. Brooks that was just issued in 2013. This is now becoming a pattern for our State Supreme Court in its tireless quest to find absurd ways to circumvent the Fourth Amendment search warrant requirement in DWI settings. The Bernard decision also continues the frustrating pattern of our State Supreme Court of leaving important questions unanswered even though they could have addressed them.
This case is part of an ongoing battle in Minnesota to hold officers to their burden to obtain a search warrant before doing an alcohol concentration search at the station/jail. This “Warrant War” has been raging for at least a decade in Minnesota. Let me get you up to speed. Back in April 2013, the US Supreme Court issued the decision of Missouri v. McNeely, which overturned case law in Minnesota that had allowed officers to ignore the search warrant requirement in all DWI cases. You can read our full description of that history here, but the short story is that the MN Supreme Court had used the “exigent circumstances” exception to the warrant requirement for all DWI cases in the Shriner and Netland decisions. That exception allowed officers to ignore the search warrant requirement because there would never be sufficient time to obtain a warrant while the evidence to be searched could be destroyed or lost (i.e., alcohol being eliminated from the blood stream by normal metabolism).
After McNeely overturned Shriner and Netland by refusing to allow the “exigent circumstances” exception to apply universally to all DWI cases, the MN Supreme Court issued a decision in State v. Brooks to use another excuse to get around the warrant requirement. The exception they used was “consent” to the search without a warrant, just like any person could consent to the search of their home without a warrant. At the time, the defense bar argued that the “consent” given to the alcohol concentration search was coerced due to the threat of criminal charges if the person refused. In any other setting, such as the search of a home, it would be absurd to pretend that a person gave voluntary consent to a warrantless search if they were threatened with criminal sanctions for refusing to “consent” to the search. Ignoring that common sense reality, the Brooks decision held that the threat of criminal sanctions was not enough by itself to negate the voluntariness of the “consent” given by the driver in the face of that threat.
This decision was particularly troubling when the MN Court of Appeals had just stated a few years earlier in the Netland decision that the consent exception could not be used in the DWI setting to get around the warrant requirement because the threat of criminal charges for refusing was blatantly coercive by design. After the McNeely decision forced our appellate courts to find a new excuse to get around the warrant requirement, they had no problem contradicting themselves by declaring in Brooks that the threat of criminal charges for refusing was not coercive at all — it just presented the driver with a “difficult choice.” Remember this 180-degree twist, as this theme will come up again shortly.
Using the “consent” exception to the warrant requirement opened a new can of worms for the courts to deal with: if voluntary “consent” was needed from the driver to get around the warrant requirement, then was it constitutional to charge the driver with a separate crime when they refused to give that consent, or should the officer be required to go ahead and get the warrant at that point? Wouldn’t the driver have a constitutional right to withhold their voluntary consent and therefore force the officer to finally follow the default requirement of getting a search warrant? Think back to the home search scenario: it would be ridiculous to criminalize the refusal to consent to a warrantless search of the home. This became the new front line battleground in the DWI Warrant War.
A few District Court judges agreed with the defense bar that the Brooks case now made it unconstitutional to criminalize the withholding of consent to a warrantless search, and one of those decisions (State v. Bernard) was appealed by the prosecution to the appellate courts. The MN Court of Appeals reversed the District Court and held that a warrant was not needed because the officer clearly had enough information to support a search warrant when he asked Bernard to take the breath test at the jail. The Court of Appeals excused the officer from actually trying to get the warrant because it assumed a warrant would have been issued anyway. This decision was immediately criticized because it effectively eliminated the search warrant requirement altogether and allowed the officer to make their own decision regarding probable cause. The MN Supreme Court agreed to review that decision, and their new decision was released this week. They joined in the criticism of the Court of Appeals legal reasoning, but they found their own misguided path to reach the same result.
So what new excuse has the MN Supreme Court turned to with its back against the wall because they relied on consent in Brooks? They used the “search incident to arrest” exception to the warrant requirement, stating that warrants are not needed for all DWI breath tests because it is reasonable for an officer to search a person’s deep lung air after they have been arrested for DWI, just like they can pat down an arrested person for weapons or contraband. The use of this exception now is puzzling, because if they really believe this exception applies they could have used it years ago during the Shriner & Netland decisions, or they could have used it for the Brooks decision. For some reason they did not, either because they overlooked it or they knew it really didn’t fit this situation. I will let the reader make their own judgment.
Remember earlier how the Netland decision dismissed the consent exception when it had the exigent circumstances exception to lean on? And once the exigent circumstances exception was taken out of the equation the Brooks case ignored the common sense reality discussed in Netland to make the consent exception fit the situation? The Bernard case is following this same pattern. Under the pressure to find a new exception to the warrant requirement, the Brooks case used the consent exception, which made it problematic to criminalize the refusal to consent to the search. Instead of following their own precedent in Brooks by sticking with the consent exception in DWI arrests, the Bernard decision ignored the issue of consent completely and jumped to a totally different exception. Why didn’t the MN Supreme Court follow its own precedent from 2013? Because if they had, the test refusal crime would have to be stricken as unconstitutional. Our State Supreme Court is making up the rules as it goes, and making a mockery of the Fourth Amendment in the process.
The “search incident to arrest” exception to the warrant requirement should not be applied to the search of an arrested person’s deep lung air. This exception is only meant to keep officers safe and to preserve evidence that could be destroyed or discarded by the arrestee at the scene of arrest. It does not apply to searches done inside a person’s body at a totally different location. Knowing this, the Bernard decision cowardly limited its ruling to situations where the arrestee is asked to take a breath test, justifying its decision since breath tests are the least intrusive between breath, blood and urine tests. The majority opinion in Bernard used broad language from US Supreme Court decisions taken out of context to ignore the plain meaning and spirit of the “search incident to arrest” exception. Their mental gymnastics are intelligently analyzed and denounced by the dissent in Bernard, which is our favorite part of the decision. The dissent would have found the test refusal crime unconstitutional.
While the lower level of intrusiveness still doesn’t justify using the traditional “search incident to arrest” exception in breath test cases, this begs the question: how will the MN Supreme Court rule in a situation where an individual refuses to take a blood or urine test? Will they try to further twist and expand the “search incident to arrest” exception or jump to yet another exception? Or will they finally acknowledge that a search warrant is needed at least for blood and urine tests when the arrestee doesn’t consent without a warrant? They could have given us some guidance or hints about that, but they just left the question completely unanswered aside from pointing out that a blood or urine test is more intrusive than a breath test.
We will all have to wait until a case with those facts works its way up to the MN Supreme Court before we find out which rabbit they will pull out of their hat in that scenario. We will certainly be pressing this issue in all test refusal cases where the arrestee was asked to take a blood or urine test. We have already heard word that prosecutors in Minnesota are instructing officers not to offer blood or urine tests, but only offer breath tests. This has already been the case in the majority of DWI arrests in Minnesota, but now we expect to see less and less blood or urine tests being requested.
We expect the Bernard decision to be presented to the US Supreme Court for further review, but it will take many months to find out whether they decide to review it or not. If they do review it, their decision could take another year or two after that. In the meantime, the test refusal crime will remain in effect in Minnesota, at least when it comes to the refusal to take a breath test at the station/jail. The Warrant War will continue with regard to the refusal to take a blood or urine test.