Last week, we blogged here about the Supreme Court of the United States (SCOTUS) granting review of Bernard v. Minnesota. Two main questions are emerging from SCOTUS’s order last week: (1) the Court reviews about 10,000 petitions each year, why did It grant review of Bernard – a state court case reviewing the constitutionality of a state statute; and (2) what happens to DWIs in Minnesota while we await a decision at least a year from now? We turn now to the first question.
Thirteen states make it a crime to refuse an evidentiary test in a DWI case. SCOTUS was considering thirteen DWI cases for review. The majority of those thirteen involved criminalizing refusing to submit to an evidentiary test. Why did Minnesota’s case Bernard make the cut?
In the aftermath of all the DWI challenges since SCOTUS decided Missouri v. McNeely in 2013, it is apparent the Court is ready to address whether criminalizing refusing to submit to an evidentiary test in a DWI case is constitutional – more specifically, whether the Fourth Amendment requires a warrant in such cases. The Court is consolidating Bernard with Birchfield v. North Dakota and Beylund v. Levi. Like Bernard, Birchfield involves criminalizing refusal, while Beylund v. Levi addresses whether a state can suspend a driver’s license based on a refusal.
Of the three consolidated cases, Bernard is the only one holding the search-incident-to-arrest exception to the warrant requirement as a basis to uphold a DWI refusal law. If SCOTUS agreed with that analysis by the Minnesota Supreme Court, then why did It grant review? Because SCOTUS probably does not agree. It would be a shock if It affirmed Bernard on the same grounds. SCOTUS typically does not take a state case analyzing a state statute and affirm it on the same grounds.
Did SCOTUS grant review of Bernard to affirm it on different grounds? Good question. SCOTUS will scour the exceptions to the warrant requirement under the Fourth Amendment while analyzing Bernard and the consolidated cases. It may also turn to the good faith exception and look at the Doctrine of Unconstitutional Conditions. Defense attorneys, prosecutors, attorney generals, legal scholars, and judges across the state of Minnesota have been debating these issues constantly in DWI cases since McNeely. A decision by the United States Supreme Court in Bernard will help provide tremendous guidance. Until then, what happens to Minnesota DWI cases while we wait for a decision? We will address that question next time.
Robert H. Ambrose is a DWI / DUI and criminal defense attorney in Minneapolis. He has a Lead Counsel Rating in Drunk Driving Defense and is a member of the National College for DUI / DWI Defense. For a free consultation, please contact us at 612-547-3199 or email at email@example.com.
 The good faith exception stems from United States v. Leon. In Leon, The United States Supreme Court allowed police to rely on a defective warrant because police relied on it in good faith, in that its fatal errors would not have been apparent on its face to a reasonable policeman. In Justice Stras’s concurring opinion in State v. Brooks, he argued that the good faith exception should apply. Using a balancing test, Justice Stras wrote that “[e]xcluding the blood-alcohol levels in this case would not deter future unlawful searches—the “sole purpose” of the exclusionary rule.
 The Doctrine of Unconstitutional Conditions is also known as the Frost Doctrine, which states that a state may not grant a privilege on condition that the recipient forfeits a constitutional right. Frost v. Railroad Comm’n. In Minnesota, the argument is that it grants driving privileges within the state on the condition that a person forfeits his or her right to be free from unreasonable searches and seizures protected by the Fourth Amendment – namely drivers in Minnesota are threatened with the crime of refusal if they do not consent to a search (i.e. evidentiary test).