Cop: “Will you take a breath test?”
Driver: “Get a warrant.”
Cop: “I don’t need one.”
Driver: “My attorney just said you do.”
Cop: “Your attorney is wrong.”
Tomorrow, the United States Supreme Court (SCOTUS) hears oral arguments about whether the attorney is right in Bernard v. Minnesota. In the scenario above, the cop arrested the driver on suspicion of DWI in Minnesota. The officer then read the driver Minnesota’s Implied Consent Advisory, which includes telling the driver “Minnesota requires you take a test” and “refusal to submit to a test is a crime.” After receiving an opportunity to contact an attorney, the officer asks the driver if they will submit to one of the following tests: breath, blood, or urine. In this scenario, and in Bernard v. Minnesota, the officer is requesting a breath test. In Bernard, the driver refuses to submit to the breath test and is charged with a crime for doing so.
Under the Fourth Amendment, does the officer have to secure a search warrant before requesting a breath test from a driver arrested on suspicion of DWI? Or, if the driver refuses to take the breath test, is it constitutional to charge them with refusing to submit to a warrantless search?
In Bernard’s brief, he stresses two main points: (1) the search-incident-to-arrest exception is to further officer safety or preserve evidence, which are both not the purposes of administering a breath test in a DWI case; and (2) the Fourth Amendment does not distinguish between breath and blood tests.
On his first point, Bernard vehemently attacks the Minnesota Supreme Court’s rationale of using the search-incident-to-arrest exception. He notes the court’s holding “turns Fourth Amendment doctrine on its head” by affording more protections to an arrestee’s property than an arrestee’s person.
For his second point, Bernard stresses the Fourth Amendment treats breath tests no differently than blood tests: they are both a search. While breath testing may not be as invasive as a blood test, it is still invasive enough to afford Fourth Amendment protections and a general reasonableness search exception should not apply.
In support of Bernard’s position, five amici curiae submitted briefs. The goal of amici is to provide additional support of an important legal issue while not beating a dead horse. To do so, each brief touched on a different reason to rule in favor of Bernard.
The ACLU noted that refusing to consent to a search is a constitutional right, therefore the government cannot make it a crime. In the same vein, the MACDL stressed that privacy rights and personal liberties need to be protected, otherwise it weakens constitutional protections. Downsize DC Foundation attacked implied consent by writing that simply acquiring a driver’s license does not equal consent to a chemical test under the Fourth Amendment. In its amici, DUIDLA pointed out that criminalizing a passive refusal is incredibly coercive and doing so does not make the roads any safer. Building upon those notions, the NCDD wrote about NHTSA studies that show criminal refusal laws do not affect the rate of refusals; and warrant procedures are more effective than criminalizing refusals.
Minnesota’s main arguments include: (1) search incident to arrest is a valid exception to the warrant requirement; and (2) based on the minimally intrusive nature of a breath test, the general reasonableness requirement of the Fourth Amendment is met in Minnesota’s refusal law.
Similar to Bernard, Minnesota has support of several amici. Each one attempts to counter argue all the points stressed by its opposition, but many have a central theme – implied consent laws are valid; and states have a compelling interest in combating drunk driving. The California District Attorney’s Association even notes the value to the public outweighs the impairment of constitutional rights. New Jersey states that Bernard’s reliance on Missouri v. McNeely is overly broad; and the United States’ brief writes that SCOTUS has recognized implied consent laws as valid.
Reading SCOTUS’ Fourth Amendment jurisprudence, it is hard to imagine the Court holding the search-incident-to-arrest exception as a valid exception in this case. If It did so hold, It would be ruling that the Fourth Amendment provides more protections for a person’s property than their person. Even though the Court considers a breath test a search just the same as a blood test, it is worrisome that the Court will rule breath tests are minimally intrusive and it is a “reasonable” search supported by a probable cause arrest. Therefore, even if one of the well-known exceptions to the warrant requirement is not met, the reasonableness standard may not apply and excuse law enforcement from securing a warrant.
Tomorrow’s oral arguments will not end the speculation. It will only feed the beast until SCOTUS actually issues Its decision. But, the questions and comments from the justices tomorrow may provide additional insight as to what path they are taking in this Fourth Amendment maze.
Robert H. Ambrose is a criminal defense and DWI defense attorney in Minneapolis and St. Paul, Minnesota. He was named a “Ten Best” DWI Attorney in the state of Minnesota for Client Satisfaction; has a Lead Counsel Rating in Drunk Driving Defense; and is an Adjunct Professor at Mitchell Hamline School of Law. DWI lawyer St. Paul MN; Criminal Defense Attorney Minnesota; and DWI lawyer Minneapolis.
 The Minnesota Association of Criminal Defense Lawyers’ (MACDL) brief can be found here. The DUI Defense Lawyers Association’s here. Downsize DC Foundation’s here. ACLU’s here. National College for DUI Defense’s and National Association of Criminal Defense Lawyers’ here.
 The California District Attorney’s Association brief can be found here. The United States’ brief here. New Jersey with seventeen other states’ here. The Council of State Governments’ here. Mothers Against Drunk Driving’s here. National District Attorneys Associations’ here.