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.