Minnesota Supreme Court finds implied-consent law for drunken drivers constitutional

Despite national court decisions limiting police in obtaining a blood-alcohol sample without a warrant, the Minnesota Supreme Court ruled Wednesday that doing so doesn't violate the state and U.S. Constitutions.

As a result, in Minnesota, a suspected drunken driver can still be charged with refusing a breath or blood test if arresting officers believe there's enough evidence to get a search warrant to require the test — even if they don't obtain the warrant. Only a few states have a similar implied-consent law.

The issue, which reached the state Supreme Court in a case involving William Bernard Jr., has been hotly debated by prosecutors, defense attorneys and legal experts.

Some believe implied consent is key in keeping impaired drivers off the road. But critics say it criminalizes a person's right to constitutional protections against a warrantless search and could extend beyond drunken-driving cases.

In the majority opinion, Chief Justice Lorie Skjerven Gildea said Bernard's warrantless breath test was legal under an exception allowing police to search a suspect in the interest of officer safety or to prevent evidence destruction.

But a blistering joint dissent by Justices Alan Page and David Stras accused the court of departing from Fourth Amendment principles, saying the ruling nullifies the warrant requirement in nearly every drunken-driving case.

Attorney Ryan Pacyga, who has handled more than 2,000 DWI cases, agreed with the dissenters. "The majority did an end run around the Fourth Amendment with this decision, and every book that discusses it is now obsolete," Pacyga said Wednesday.

Bernard's case was argued before the state Supreme Court in September. Bernard, now 32, of Eagan, was charged in August 2012 with two felony counts of refusal to submit to a chemical test. He had had four impaired-driving convictions since 2006.

In July 2013, Dakota County District Court Judge Jerome Abrams dismissed the charges, citing the U.S. Supreme Court's Missouri vs. McNeely ruling, which limited the power of officers to take a blood sample without a warrant. Abrams didn't rule the state's implied-consent law unconstitutional, but said officers should have obtained a warrant before they brought charges.

The state Court of Appeals overturned Abrams' decision, as it has done with several similar appeals. It reasoned that Bernard could be prosecuted because the officers had probable cause to arrest him and could have secured a warrant for a breath test.

The exception cited by the state Supreme Court that allows police to do a warrantless breath test is legally referred to as a "search incident to a valid arrest exception." Gildea said that the state high court could not find a single case anywhere in the country prohibiting a breath test under that exception.

Yet the ruling deals only with a breath test and makes only a passing reference to the constitutionality of a blood or urine test for a suspected drunken driver. That may open the door for a driver to demand a warrant before giving a sample, said Dan Koewler, a DWI defense lawyer who submitted a brief in support of Bernard from the Minnesota Society for Criminal Justice. "This is notable, and leaves more questions than answers," he said.

Andy Skoogman, executive director of the Minnesota Chiefs of Police Association, said the ruling could make it more difficult to administer blood and urine tests without a warrant. However, some chiefs told him they are already being advised to only offer breath tests, he said.

Dakota County Attorney Jim Backstrom said he agreed with the ruling's discussion of the severe threat impaired drivers pose to public safety. Thirty percent of 2013 traffic deaths in Minnesota were alcohol-related, Gildea wrote. Encouraging drivers to submit to chemical tests by criminalizing their refusal furthers the interest of government to reduce drunken driving, she said.

The laws in Minnesota and across the nation on topics associated with impaired driving have been in flux since the U.S. Supreme Court's ruling in the McNeely case, Backstrom said. But Wednesday's decision solidifies the constitutionality of Minnesota's DWI laws, he said.

The 12-page dissent by Page and Stras chastised the majority ruling, saying that the court "apparently wishes that we lived in a world without the [protections] of the McNeely case."

"Even though the court's opinion strikes a confident tone, the truth of the matter is that its decision is born of obstinance," Stras and Page wrote.

The dissent challenged two main points in the majority ruling. The first dealt with the presumption that biological material may be taken from inside a person's body as part of a search. The other addressed the necessity of administering such a search to preserve evidence. The ruling expands the scope of what Koewler and others consider an already illegal search.

Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota, said the ruling will have "a chilling effect."

" 'Where is it going to stop?' is uppermost in our mind," he said. "Why couldn't a similar warrantless search be considered in a drug or theft case?"

As a result of the ruling, Samuelson said, police will "feel they can be more aggressive with searches, and people will feel less comfortable about demanding a warrant."

He said the state Supreme Court wouldn't have ruled as it did if a crime as sensitive as drunken driving hadn't been involved.

Samuelson and attorney Jeff Sheridan, who helped represent Bernard during his appeals, said their main criticism is of the Legislature for creating a implied-consent law they consider unconstitutional. A suspect isn't required to help an accuser, Sheridan said.

"We are supposed to be living under one Constitution," he said. "The ruling has gone against the U.S. Supreme Court, and that creates an environment that court will want to weigh in on."

David Chanen • 612-673-4465