Minnesota's drunken-driving law could escape on a technicality

Following its defenders' interrogation last month before the U.S. Supreme Court, Minnesota's drunken-driving law is in something of the position of an inebriated driver — one who staggered and stumbled his way through roadside sobriety tests but still hopes to get off on a technicality.

If Minnesota's "implied consent" law, which makes it a crime to refuse a drunken-driving breath test, escapes unscathed from its own legal troubles, it might only be because of the high court's susceptibility to deadlock this term, in the wake of Justice Antonin Scalia's death in February and Washington's stalemate over replacing him.

The Supreme Court heard oral arguments April 20 on a Minnesota driver's claim that his implied-consent conviction is unconstitutional. The shorthanded post-Scalia court has already produced a number of 4-4 rulings — which leave lower-court decisions in place without really settling legal questions — and other ties are anticipated in contentious, closely watched cases.

One can't be sure, but Minnesota's drunken-driving case could produce still another messy court pileup — and it might not conform to the usual left-right ideological divide among the justices.

Scalia's absence may be good news in this case for Minnesota law enforcement. That's because the alleged arch-conservative in fact had a long and seldom-recognized record of upholding criminal defendants' rights. In cases involving warrantless DNA tests, infrared monitoring of homes to detect marijuana farms, GPS devices attached to suspects' vehicles, drug-sniffing dogs on front porches and many more, the unflinching originalist stood strongly for Constitution-mandated limits on government's powers to search and eavesdrop.

"Solving unsolved crimes is a noble objective," Scalia wrote in one case, "but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

In keeping with that sentiment, Scalia was part of a 5-4 majority in a murky but scene-setting 2013 drunken-driving decision, Missouri vs. McNeely. In that case, a fragmented court held that police generally need warrants before testing the blood of uncooperative suspects. Clearer rules would emerge in future cases, the justices promised.

Minnesota (like a dozen other states) makes it a crime for drivers to refuse a test of their blood alcohol level — usually a breath test in Minnesota — after being arrested for impaired driving based on swerving, bloodshot eyes, boozy breath, etc. The idea is that driving on public roads is a privilege, granted on the condition that drivers agree to take an impairment test when reasonably under suspicion. To renege on that "implied consent" is a crime, basically equivalent to drunken driving itself.

Courts have generally held that states have every right to automatically revoke the driver's license (withdrawing the driving "privilege") of a motorist who refuses a test. But to make refusal itself a crime punishable with jail, fines, etc. — shouldn't cops at least need a search warrant from a judge?

This question is puzzling for courts largely because the practical realities of drunken-driving enforcement are daunting. It's a most inconvenient crime, requiring many thousands of arrests in far-flung locales and often late at night. Collecting conclusive evidence requires chemically testing substances extracted from a suspect's body — an inherent invasion of privacy — and the evidence disappears rapidly as alcohol dissipates in the bloodstream.

So arranging for judicial warrants to be effectively issued in vast numbers of drunken-driving arrests is a complicated, costly proposition. Hence states' interest in using implied-consent laws to simplify matters, and hence the complexity courts have discovered in applying the Constitution's guarantee against "unreasonable searches" in this context.

But just how difficult would it be for Minnesota routinely to seek warrants for drunken-driving tests, as many other states do? What would be the effect on public safety? The justices had a surprisingly hard time during last month's oral arguments extracting such "practical facts" from lawyers.

Later, he told Minnesota's lawyer: "If you're prepared to come back and say to me, 'You know, if we have to get a warrant, 50 percent of the drunken drivers are never going to be caught' … I'll listen to that. If you [say] it will mean that policemen have to spend 10 seconds more than they'd otherwise spend on a telephone, I say, 'Well, that's a point, but not that much of a point.' "

Meanwhile, Justice Sonia Sotomayor complained to Minnesota's advocate that the state's problems complying with the warrant requirement in drunken-driving enforcement seem primarily to be a function of its various policy choices, yet "you want us to create an exception to the Fourth Amendment, and a very drastic one … because of your choice."

In all this, Scalia would likely have approved, even amplified, his liberal colleagues' sentiments. Breyer conceded at one stage that a breathalyzer test, involving blowing into a straw connected to a machine, wasn't particularly invasive.

But as Scalia once mused in connection with the cheek swabs required for DNA testing: "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."

Post-Scalia, Minnesota drunken-driving suspects may have to continue to open wide — and that needn't keep us up nights. But it is always good to see the state pressed to explain itself.