The wait is over. Last Thursday, the United States Supreme Court finally decided Bernard v. Minnesota. Justice Alito’s thirty-eight-page opinion for the majority can be summed up with the following: breath testing is less invasive than blood testing; therefore the states can criminalize refusing to submit to a breath test in a DWI case, but not for blood testing. The Court was able to make these distinctions because of the factual variations of the consolidated cases: Bernard, Birchfield v. North Dakota, and Beylund v. Levi.
In typical SCOTUS fashion, Alito’s opinion starts with a history lesson. His grand recitation dates back to the Prohibition era and the first per-se DWI law setting the alcohol concentration level at .15. Alito continues his lesson plan by describing the initial tools used by law enforcement to test a person’s alcohol concentration, including the “Drunkometer” and “Breathalyzer”.
Section two of Alito’s opinion recaps the facts and procedural history of Birchfield, Bernard, and Beylund. Alito follows that in section three of his opinion by propositioning that all three cases depend on whether a warrant is required and if the states’ laws comply with the Fourth Amendment.
Alito begins his Fourth Amendment analysis in section four by propositioning “[t]he question [here] is whether the warrantless searches at issue here were reasonable.” He then goes through the progeny of Fourth Amendment cases regarding breath and blood testing, including: Skinner, Schmerber, and McNeely before considering whether the search-incident-to-arrest doctrine applies here.
Search Incident to Arrest
To begin his search-incident-to-arrest analysis, Alito revisits his history lesson. He quotes from an 18th-century manual for justices of the peace that stressed thoroughly searching felons. Alito felt compelled to continue his research into pre-Fourth Amendment implementation by quoting a historian who noted during that era “[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well.”
Why did Alito feel the need to dive into pre-American independence and the lack of constitutional protections? It appears to along with the general theme of his opinion and signals the court’s general consensus that breath testing is not so bad. To reach that conclusion, Alito notes the Court will use Riley’s analysis of evaluating “the degree to which [they] intrud[e] upon an individual’s privacy and . . . the degree to which [they are] needed for the promotion of legitimate governmental interests.”
Alito went on to distinguish the differences between breath and blood testing. He noted that blood testing is significantly more intrusive as it involves piercing the skin of someone and a person’s blood can reveal personal medical facts more than simply a person’s blood alcohol level. In breath testing, the only thing revealed about the person is their alcohol concentration level and exhalation is a natural process. Therefore, “breath testing does not implicate significant privacy concerns.”
Alito then balanced the intrusion with the need for blood alcohol concentration testing in DWI cases. He dived into DWI statistics and the problem each state faces in enforcing its DWI laws. He noted that requiring a warrant in every DWI case would be burdensome on rural areas where sometimes one judge, or magistrate, covers multiple jurisdictions. Eventually, Alito came to the conclusion that the “impact of breath tests on privacy is slight, and the need for BAC testing is great.” But he reached a “different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”
In conclusion, Alito writes “breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.”
The remaining issue before the Court was whether implied consent could justify criminalizing refusing to submit to a blood test in a DWI case. The majority did not agree. Alito noted it “is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test.” And, “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”
Applying these conclusions to Beylund’s facts, the Court determined the “North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests.” Now, that the implied consent advisory read to Beylund was partially inaccurate, the Supreme Court remanded Beylund’s case for North Dakota to determine whether Beylund’s consent to take a blood test was voluntary under the totality of the circumstances.
Justice Sotomayor’s Dissent
Justice Sotomayor’s dissent was joined by Justice Ginsburg. Both justices concurred with the judgement in Birchfield and Beylund, but dissented from the Court’s disposition of Bernard. Justice Sotomayor wrote “no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver’s alcohol level, [therefore] the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case.”
Sotomayor went on to reason that “neither the Court nor the States identify any practical reasons why obtaining a warrant after making an arrest and before conducting a breath test compromises the quality of the evidence obtained.” Sotomayor continues to explain the inevitable delay between arrest and testing in DWI cases anyway, including the time it can take a breath-test machine to warm-up back at the police station. Therefore, there is a “‘built-in window, police can seek warrants. That is particularly true in light of ‘advances’ in technology that now permit ‘the more expeditious processing of warrant applications.’” Sotomayor concludes with her worry about a watered-down Fourth Amendment “fear that if the Court continues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion.”
Justice Thomas’s Dissent and Concurrence
Justice Thomas concurred with the judgement in Bernard, but dissented in Birchfield and Beylund. Justice Thomas believed the Court got in wrong in McNeely when it held the natural dissipation of alcohol in a person’s bloodstream does not constitute an exigent circumstance excusing a warrant. He believes the same here. He would not compromise and hold that blood testing and breath testing should be considered differently. Justice Thomas reasoned that this “hairsplitting makes little sense. Either the search-incident-to-arrest exception permits bodily searches to prevent the destruction of BAC evidence, or it does not.” He goes on to write that the “Court was wrong in McNeely, and today’s compromise is perhaps an inevitable consequence of that error.”
Robert H. Ambrose is a DWI lawyer and criminal defense attorney in Minneapolis and St. Paul, Minnesota. He was named a Rising Star by Super Lawyers; a Top 40 Under 40 National Trial Lawyer; and is a member of the National College of DUI Defense. DWI lawyer Minneapolis; Criminal Defense Lawyer St. Paul MN; and Minnesota DWI lawyer.
 6-2 decision allowing criminalization of refusing to take an evidentiary breath test in a DWI case.
 7-1 decision prohibiting criminalization of refusing to take an evidentiary blood test in a DWI case.
 6-2 decision to remand back to North Dakota to determine whether Beylund’s consent was voluntary under the totality of the circumstances when he submitted to an evidentiary blood test in a DWI case and his driver’s license was suspended as a result of the test.
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