Only thirteen cases remain without a decision in the 2015 term for the Supreme Court of the United States (SCOTUS). To date, the Court reached decisions in sixty-eight cases. Over the next eight days, the Court will convene three times: two non-argument sessions and one conference. Many scholars believe the Court will issue any remaining decisions by the last session on June 27th. Making the decision we have all been waiting for in Bernard v. Minnesota imminent.
For those who do not know about the Bernard case and its potential impact, or just need a refresher, Bernard is a challenge to the constitutionality of Minnesota’s DWI Refusal law in a criminal case. The Supreme Court consolidated Bernard with Birchfield v. North Dakota and Beylund v. Levi. Birchfield involves whether a state can criminalize refusing a blood test in a DWI case; and Levi whether a state can suspend a driver’s license based on a DWI refusal. Bernard is the only one of the three where the lower court held the search-incident-to-arrest exception to the warrant requirement as a basis to uphold a DWI refusal law.
Once SCOTUS granted review in Bernard last year, the speculation about Its potential impact spread like wildfire across the state of Minnesota. Every day, lawyers, judges, law enforcement officials, and defendants are discussing what might happen in Bernard. When the general unease and nervousness creeps into a DWI case where a defense attorney presents a challenge on Bernard, a few things are happening: the case is continued to at least July in hopes of getting a decision from SCOTUS, the judge prefers to rule on the challenge anyway, or the parties come to a settlement.
What Happens if SCOTUS Splits the Decision 4-4
With a current makeup of only eight justices on the Supreme Court, there have been at least three 4-4 split decisions. In those cases, the Court does not issue an opinion and does not set any legal precedent. The Court effectively affirms the lower court’s decision.
A 4-4 split in Bernard would mean that Minnesota’s DWI Refusal law is still constitutional; and we are left without any legal analysis and guidance from the nation’s highest court, which would be a complete waste of time, money, and energy for everyone involved.
A 4-4 split in Birchfield and Beylund would result in the same outcome: North Dakota’s DWI Refusal law in criminal and civil (driver’s license revocation) cases would be upheld as constitutional.
The speculation is nearing its end. One of the most common questions currently heard in court is “when do you think Bernard will come out?” will soon turn to “what do you think of that Bernard opinion?” Stay tuned.
Robert H. Ambrose is a DUI defense attorney and criminal defense lawyer in Minneapolis and St. Paul, Minnesota. He was recently named a Rising Star by Super Lawyers; is a Top 40 Under 40 National Trial Lawyer; and is a member of the National College of DUI Defense. DWI lawyer St. Paul MN; Criminal Defense Lawyer Minneapolis; and Minneapolis DWI lawyer.
 SCOTUS also has the option to not decide the case and set it for a reargument next term when It hopes to have a full bench.