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Major DWI news broke yesterday: the United States Supreme Court granted review of Bernard v. Minnesota. Out of the roughly ten thousand petitions SCOTUS receives each year, it only grants review of about eighty. This week, the Court was considering thirteen DWI cases. Making the final cut was Bernard; Birchfield v. North Dakota; and Beylund v. Levi. The Court consolidated all three cases and will hear them all at once in a one-hour hearing next term. In the wake of Missouri v. McNeely, virtually every state in the nation faced challenges to its DWI laws. Minnesota and North Dakota were no exception. They are also two of thirteen states to make refusing to submit to a DWI evidentiary test a crime.
Earlier this year, the Minnesota Supreme Court decided that Bernard’s refusal to submit to a warrantless breath test in a DWI case did not trigger the need for a law enforcement to secure a warrant to charge him with DWI Refusal. Despite significant U.S. Supreme Court precedent, the Minnesota Supreme Court determined the search-incident-to-arrest exception excused the need for law enforcement to secure a warrant in such situations. Without hesitation, Bernard’s counsel petitioned the U.S. Supreme Court for review of Minnesota’s surprising use of the search-incident-to-arrest exception.
Search Incident to Arrest
Search incident to arrest is an exception to the warrant requirement for two reasons: (1) to protect the safety of the arresting officer; and (2) to preserve easily concealed, or destructible, evidence on or about the person. Placing an arrestee in a secured patrol car, under supervision of a peace officer, alleviates the safety concerns and eliminates the search incident to arrest exception.
“Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” A valid search incident to arrest must be incidental to the arrest, not merely an incident of the arrest. In DWI cases, once the suspect is in custody, obtaining a chemical test is no longer incident to the arrest. There is too much time between the initial arrest and the search; and the officer’s safety is no longer a primary concern.
Based on this significant precedent, it is hard to imagine SCOTUS will agree with the Minnesota Supreme Court’s analysis in Bernard. Will SCOTUS find a different exception to the warrant requirement? Or, will the Court agree with the dissent in Bernard and find Minnesota’s DWI Refusal law unconstitutional? We will address these questions and the impact of SCOTUS’s decision to grant review in Bernard shortly.
Robert H. Ambrose is a criminal defense attorney in Minneapolis, Minnesota. He is a member of the National College for DUI / DWI Defense and has a Lead Counsel Rating in Drunk Driving Defense among other achievements in DWI Defense.
 See Chimel v. California, 395 U.S. 752, 762–63 (1969).
 Preston v. United States, 376 U.S. 364, 367 (1964) (citing Agnello v. United States, 269 U.S. 20, 31 (1925)); See also United States v. Chadwick, 433 U.S. 1, 15 (1977) (holding search not incidental to arrest when evidence was under law enforcement’s control for more than an hour and suspects were already in custody).
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