U.S. Supreme Court upholds MN breath test law for DUI

  1. Listen Bob Collins discusses the court’s decision

    June 23, 2016

The U.S. Supreme Court Thursday struck down part of Minnesota law that forces people suspected of driving under the influence to submit to blood tests without a warrant or risk potentially more severe penalties.

At the same time, however, the high court affirmed a Minnesota Supreme Court ruling that authorities can force a person to submit to breath tests without a warrant by criminalizing their refusal to do so.

The court ruled in three consolidated cases, one of which involved 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, who had four previous convictions for DUI, admitted to drinking, but said he wasn’t driving the truck, and he refused to take a chemical test.

In upholding the validity of the breath test without a warrant in February 2015, Minnesota Supreme Court chief Justice Lorie Gildea said “the breath test was a search of Bernard’s person that would have been no more intrusive than the myriad of other searches of the body that we and other courts have upheld as searches incident to a valid arrest.”

Today, the U.S. Supreme Court said essentially the same thing.

“Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

In instances where blood tests might be preferable — e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious — nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies.

Because breath tests are significantly less intrusive than blood tests and in must cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.

Five Supreme Court justices said motorists cannot be criminally punished for refusing to submit to a blood test, however. It ruled in a case involving a North Dakota man who refused to allow blood to be drawn.

“It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit.

There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Refusing to submit to breath testing in Minnesota carries consequences often more severe than a DUI conviction, particularly in cases with previous DUI convictions. In Minnesota, 1 in 7 drivers has such a conviction.

And that, Justice Samuel Alito wrote in his opinion (joined by Justices Stephen Breyer, Anthony Kennedy, Elena Kagan and John Roberts) is the way it needs to be.

“If the penalty for driving with a greatly elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing, motorists who fear conviction for the more severely punished offenses have an incentive to reject testing. And in some States, the refusal rate is high.

On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so,” he said.

Alito said Minnesota’s law is why the state’s refusal rate is half the 24% rate reported for 1988, the year before its first criminal refusal law took effect.

Bernard’s attorney argued, however, that even the breath test is intrusive and should require a warrant.

Alito was unmoved, saying the test is neither painful nor difficult, sucking on a straw more than four times.

“The use of a straw to drink beverages is a common practice and one to which few object,” he wrote.

Besides, he maintained, air isn’t part of our bodies and the test only reveals one thing: how much alcohol is in a person’s breath.

“Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs,” he said. “The air that humans exhale is not part of their bodies. Exhalation is a natural process—indeed, one that is necessary for life. Humans cannot hold their breath for more than a few minutes, and all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test.”

But blood tests are a different matter entirely.

“It is significantly more intrusive than blowing into a tube,” Alito wrote. “Perhaps that is why many States’ implied consent laws, including Minnesota’s, specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take.”

The court overturned the conviction of a North Dakota man for refusing to submit to a blood test, declaring it an unreasonable search.

Why the rush to draw blood without a warrant? Authorities say in the time it takes to get one, it’s possible alcohol in a person can dissipate.

In her dissent, Justice Sonia Sotomayor focused on the South St. Paul case.

She said most breath tests in Minnesota are not performed roadside, but usually 45 minutes after a person is detained, long enough, for example, for a driver to contact an attorney. That’s plenty of time to also get a warrant, she argued.

While Alito argued doing so would overburden judges, Sotomayor’s math showed that on average, judges would be required to issue one more warrant a week in Minnesota.

“This Court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement,” she wrote.

Justice Clarence Thomas objected to “splitting hairs” between breath tests and blood tests. He proposed that neither blood nor breath tests require warrants.

Here is today’s decision.

  • Jeff

    So I read the article, I’m confused…so there is no criminal penalty for refusing but the police can force people to submit to the breath test? How does that work?

    • Laurie K.

      You cannot be criminalized for refusing to submit to a blood (and I would argue, in Minnesota, urine) test. You CAN be penalized for refusing to provide breath.

      • Jeff
        • Gillatar

          those machines are a joke.
          Unfortunately so is the education system so its a hard sell to the public to understand why

          • REALConservative

            No kidding. They actually believe it’s rational to use a dog to generate probable cause.

          • Gillatar

            But the dog barks and scratches where it’s handler taps his fingers repeatedly.

        • Nothing prevents an attorney from offering up the defense that the code is unreliable, however.

          • Gillatar

            why use something unreliable?
            why not just stick to a blood draw that is reliable?

          • Jeff

            I do hope a court will force a company to release the code, it would be interesting to take a look at. I’m still not sure how a company could get a patent on that device without having to release the code to the patent office…unless they’re keeping it secret and not filing a patent which is sort of shady for something that needs to be viewed in a court of a law.

          • Mike Worcester

            I keep thinking this issue has been adjudicated previously, so hopefully someone will fine a more recent article than this one.


          • Ryan Johnson

            Code is generally covered by copyright rather then patent.

          • Laurie K.

            The first link your provided in your earlier post was about a 2009 case in which the MN Supreme Court ruled that the source code for the Minnesota Model of the Intoxilyzer 5000EN was discoverable. Defense attorneys have been able to get the code since 2009. It’s irrelevant though due to another MN Supreme Court Case that upheld a district court judge’s opinion that although the source code may have some problems, they did not rise to a level that would allow the exclusion of the tests results. I think MN law enforcement agencies all now use the DataMaster rather than the Intoxilyzer 500EN. Regardless, the case law and the statutes of MN hold that as long as the State can prove that the test was administered by a certified operator who testifies that the instrument was in proper working condition, this constitutes a prima facie case of reliability and it is up to the defendant to show why the test is untrustworthy.

          • Gillatar

            datamaster essentially has the same source code as the intoxilyzer.
            there are still over 200 different methyls the machine will detect and report as alcohol.
            the other problem is the data for calculating the BAC is the same as it is based on the average person. The average person in the world at the time of it being written is asian, female and now deceased.
            its unreasonable to believe that we are all deceased female asians

        • J-dawg

          You can always request a blood or urine test if you don’t have faith in the reliability of a breath analysis.

      • Gillatar

        when will they get rid of the civil dui (implied consent) portion and just roll it all into a criminal charge.
        It is ridiculous that you are essentially charged twice for the same crime.

        • I believe it becomes a felony after multiple DUIs.

          • Gillatar

            if you do not file a motion with the civil dui to contest it (without a jury) and you are found not guilty of the criminal dui (with jury) the civil dui can be counted against you in the future.
            3 in 10 years i believe is a felony

  • Al


    “Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs,” he said. “The air that humans exhale is not part of their bodies. Exhalation is a natural process—indeed, one that is necessary for life. Humans cannot hold their breath for more than a few minutes, and all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test.”

  • Jeff

    It really seems like the justices are attempting to “split the baby” on all these 4th Amendment cases. I still feel that any sort of “implied consent” requirement feels completely outside the scope of the 4th Amendment even if it only applies to a breathalyzer test. In my perspective the police should get a warrant for the tests or make the case in a court of law that a person is impaired using video footage and field sobriety tests; you shouldn’t have to submit to a “search” (even it’s just your breath) by obtaining a driver’s license.

    Here’s the ruling:


    • lindblomeagles

      Alas Jeff, you are right; justices do try to split the baby on 4th Amendment issues because as much as country loftily, virulently talk about Constitutional Rights, we’re incredibly sensitive to crime. That’s why, for example, people fight to the death to stop greater gun control laws. When it comes to drunk driving, many attorneys remind courts of the tragic loss of life, ESPECIALLY THAT OF CHILDREN, from people who routinely, excessively, drive drunk. The courts are sensitive to that and are not about to have a group of parents lay blame for dead children who were hit by a drunk driver who had already been arrested several times before for driving while drunk. The courts would, instead, rather have us take that blame and anger to our legislative houses, and hold them responsible for inaction.

    • You know I posted the ruling above, right?

      • Jeff

        I didn’t refresh my page for a while so I still had the original story…

    • Gillatar

      reasonable field sobriety tests should be more than enough evidence for a jury to review and determine sobriety.
      the .08 rule is overkill and varies so much from person to person.
      in the event of an accident a warrant and blood draw could be used.

      otherwise its just another form of revenue generation
      if the police and law makers really cared about stopping intoxicated drivers a blow and go would be in every vehicle (i disagree with this)…but then where else would they randomly tax Americans through citations?

    • J-dawg

      This ruling wasn’t based on implied consent. In dicta, the court approved of attaching civil penalties via implied consent. But they ruled that a breath test was a per se reasonable exception to the warrant requirement under the search incident to arrest doctrine, and therefore refusing to consent/cooperate was criminally punishable like any other obstruction of a valid search.

      • How could a Supreme Court ruling be based on implied consent?

        • J-dawg

          If they had upheld the validity of criminal penalties for refusing a breath BAC test in light of the argument that drivers consent to such tests in exchange for a license, like many people seem to think happened. Perhaps you should clarify why you think that particular court would be precluded from such a ruling.

          • I’m not sure what you’re saying. You used the phrase “ruling based on implied consent”. I didn’t see how a RULING could be based on implied consent.

            The question before the court was whether criminal penalties to coerce either blood or breath test violate the Fourth Amendment’s prohibition against unreasonable

            The POSSIBLE criminalization of refusal for a breath test in MN is still intact. For the moment, the POSSIBLE criminalization of refusal for a blood test in MN is not on the basis that you cannot be compelled to participate in an unreasonable search.

            Beyond that, I’m not sure what you’re saying.

          • J-dawg

            Implied consent is both a label for the type of law and an argument for why it is constitutionally valid. Basically, the argument would be that it isn’t coercive, because you voluntarily agreed to that condition to get your license, and therefore the Fourth Amendment isn’t implicated. The court today affirmed that that logic is all well and good when it comes to civil penalties, while holding that it does not hold up as applied to criminal penalties.

          • Huh. I’ve never seen an argument that a warrantless search is constitutional because of implied consent. But I don’t spend a lot of time looking for those arguments, either. I’ve always seen it framed w.r.t. the validity of the search under the 4th Amendment.

            and, yes, as I said in the All Things Considered segment that will air in a little bit, nothing changes w.r.t. civil penalties for refusal in either breath or blood cases.

            The bottom line, of course is if a warrantless search fits the 4th Amendment, MN — and other states may criminalize the refusal to comply with testing. If it doesn’t, it can’t.

          • REALConservative

            Do you always just remove people’s posts when they show the error of your comments?

          • No. Only when people are childish and uncivil toward each other

  • Jeff

    It’s funny how I agree with Sotomayor and Ginsberg on this one and I’m completely opposed to Thomas on this issue…all three dissented from the court’s majority ruling (Alito, Kennedy, Kagan, Breyer and Roberts were in agreement with the ruling above). Sotomayor & Ginsberg argued that there should be no implied consent and that all tests should require a warrant. Thomas sees no problem with any of these warrantless searches, including taking of blood.

  • lindblomeagles

    I can’t believe I am about to agree with Justice Alito. That has never happened to me. But, he’s right. Human beings cannot lay claim to their own breadth simply because scientifically, none of us can prove beyond a reasonable doubt that our breadth originated from us. We draw air into our lungs where it undergoes a process to extract oxygen, which is then pumped to our cells, and whatever else is left from the air and the gases and bacteria from our bodies mixes together and is breathed out into the air, whether we consent to it’s release or not. That’s why breath mints were created; to control what we do not have control of. That’s also why we have oxygen tanks attached to our bodies when we go deep sea diving, or climb and fly to greater altitudes, or are stricken by various lung diseases. Our society already controls second hand smoke from tobacco, air, that, if you’ll remember, comes from our mouths and is dangerous to public health. If you’re so drunk your breadth smells like a brewery, anybody close to you already knows you had too many because you can’t stop your breadth from being released into the atmosphere.