Minnesota appeals court: OK to test drivers for DUI without a warrant

A handful of cases from federal and state judges has sought recently to clarify a long-standing argument: When you drive a car, is it constitutional that you automatically submit to chemical testing for DUI when an officer asks you too?

Despite the rulings, the question has not yet been put to rest. Today, the Minnesota Court of Appeals reinstated charges against a man who was criminally charged for not submitting to a chemical test. It’s the first case since the Minnesota Supreme Court ruled on the issue last fall, and it’s a case that probably will end up at the Minnesota Supreme Court.

The court ruled in the case of William Bernard, who was stopped by police in South St. Paul after they received a tip that three drunk men had jumped in a pickup truck at the public boat launch on the Mississippi River. By the time they got there, Bernard was walking dazed in his underwear, his pickup truck hung up on the edge of the boat ramp. All smelled of alcohol.

Bernard admitted to drinking, but said he wasn’t driving the truck, and he refused to take a chemical test, which allowed police to charge him with DUI under the so-called “implied consent law,” giving police the right to search without a warrant because alcohol could dissipate by the time a search warrant was obtained. When you drive in Minnesota, you agree to be tested for driving under the influence.

Bernard challenged the law as unconstitutional and while a district court judge refused to deem it so, it said Bernard couldn’t be criminally charged under implied consent unless the totality of the evidence justified a warrantless search via a breath test.

The Minnesota Court of Appeals has been sitting on this case until the Minnesota Supreme Court ruled in another case challenging the law, which it did last October when it cleared the way for the warrantless searches in a divided ruling.

But Bernard claims that a U.S. Supreme Court decision last April makes his arrest unconstitutional because it ruled police must obtain a search warrant in these kinds of cases.

In reinstating the charges against Bernard today, the Court of Appeals said there was plenty of probable cause to require Bernard to submit to a sobriety test.

“Because the officer indisputably had probable cause to believe that Bernard was driving while impaired (he was identified by witnesses as the driver, he was holding the truck keys, and his wardrobe, instability, and odor indicated that he was intoxicated), the officer also indisputably had the option to obtain a test of Bernard’s blood by search warrant,” Judge Kevin Ross wrote in today’s decision.

Judge Ross seemed to suggest that the warrantless search was reasonable because a warrant could have easily been obtained:

That the officer chose one approach (the authority to make the request under the implied consent statute) rather than another (the authority to obtain a warrant under the impaired driving statute) does not make penalizing Bernard’s decision unconstitutional because the consequent testing under either approach would have been constitutionally reasonable.

We recognize that the officer did not actually possess a search warrant at the time of his request, but the constitutional and statutory grounds for a warrant plainly existed before the request.

Here’s the full opinion.

  • John

    I’ll start by saying that I’m no fan of the “if you’re not guilty, then why worry?” argument.
    Now, that being said, I’m actually okay with warrantless breathalizer tests. The last time I checked, we don’t have a right to a drivers license, and my understanding is that when you fill out the application, you’re agreeing to the breath test when there’s suspicion of alcohol use. if you can’t agree to those terms, then don’t get a driver’s license.

    Whether these tests are constitutional or not, I don’t think I’m familiar enough with the intricacies of the law to be able to offer any sort of well formed opinion on the subject. Sounds like a lot of people have though.

    • But the thing about constitutional values is they aren’t — or shouldn’t be — conditional. The question isn’t so much what you give up in exchange for a driver’s license as much as it is what constitutes an unreasonable search under the 4th amendment.

      I would be reluctant to have a court rule on the link between giving up a right in exchange for a license because then it’s a very short step to a court citing the same decision in giving up another right for another thing.

      That said, I don’t think the state courts have been particularly clear in their recent ruling and , for the life of me, I don’t know how a cop in the field is supposed to understand the hair-splitting that’s being done on this question.

      Maybe the result is “arrest ’em and let the county attorney figure it out,” but that can go all sorts of bad ways for people if it gets to that.

      • John

        Fair enough – the question is what is or is not a Constitutional Right, correct? (Part of the question is probably how reasonable doubt can be established or removed without immediate testing, but that’s not really in play here).

        I don’t think of it as giving up a Constitutional right in exchange for a drivers license (though it may well be, and perhaps I should). I view it as a condition of a drivers license that you may be stopped and have your BAC checked at any time as a requirement of being allowed to drive. If the consequence of having a BAC above the limit was simply revocation of your license, it might be clearer, but since we’ve attached a great deal of other punishment for driving with a high BAC, the waters are considerably muddier. The presumption of guilt is an issue too, I definitely acknowledge that.

        I found myself having drinks with a couple of professional movers a few years ago, and they would not even consider driving for several hours after a single drink. The punishment for any positive BAC test was loss of their CDL (and consequently, loss of livelihood for these guys). At any rate, the punishment was severe enough that it prevented them from risking it. I wonder what would happen to the frequency of drunk driving if that were the case for the rest of us. (It doesn’t work with the death penalty, so perhaps I’m barking up the wrong tree here.)

        What we really need to do is figure out a way to keep people from driving drunk in the first place. That would be best.

        • And I would most certainly be against being stopped anytime to have BAC checked as a requirement, which is why sobriety checkpoints were ruled unconstitutional. The courts are dealing with the “totality” of evidence in the question of implied consent. Yes, this guy smelled of booze, was standing in his underwear, his truck stuck at the boat ramp… but does that constitute a “totality” of evidence of DRIVING while intoxicated? The holding of his keys, perhaps, would suggest it is. The MN Supreme Court will get to figure it all out.

          Your question about keeping people from driving drunk in the first place is a good one. But just look around today — St. patrick’s Day — at how the overconsumption of alcohol is applauded and celebrated.

          • Dave

            I’ve heard anecdotes that obtaining a driver license in certain European countries is much more expensive than here in the US. The penalties for drunk driving are also a lot stiffer there. Basically they don’t risk it (or that’s the theory anyway).

  • jon

    I’ve never done a breathalyzer, but I’ve watched it happen on cops… “Blow, keep blowing keep blowing” is what they tell the person taking it, seems like if you didn’t consent to the breathalyzer they would have to hold you down and shove the machine in your mouth while holding your nose closed…

    Once you consent to a search, you gave up those 4th amendment rights…

    That being said, sounds like he was walking around not driving, when the police arrived… outside of the witness does not sound like there was any evidence that he was driving the car (I have my car keys on me right now, but I’m in a cubicle, clearly not driving…) I’m not sure that one witness account is enough to justify a search…
    However, since he was in his underwear, a disorderly conduct citation, impound the car and cite him for illegal parking…. that all seems easily justified.

    • John Kylie

      “Once you consent to a search, you gave up those 4th amendment rights…” not if you are coerced into giving consent. If you refuse to consent you will be charged with a separate and more serious crime. In MN a first DUI offense is a misdemeanor but test refusal is a gross misdemeanor. It’s coercion and it is violation of the 4th Amendment to the U S Constitution aka “the law of the land”. This “law of the land” trumps State law…as stated in our Constitution.