Three men who were apparently intoxicated at a South St. Paul (Dakota County) boat launch got their car stuck in the river. They were attempting to get it out of the river when the police arrived– one of the men, Robert Bernard, Jr., was in his underwear and had been driving the truck. He was taken to the police station where he refused to take a breath test to determine his blood alcohol concentration level (driving with a blood alcohol concentration of .08 or more is a crime). When he went to court, he argued that the case should be dismissed because the cop did not have a warrant even to ask for a breath sample.

The district court agreed and dismissed the case. The Minnesota Supreme Court disagreed saying that warrantless searches are lawful when they are done as a search incident to arrest (alternatively, the driver impliedly consented to the search) and reinstated the conviction. The case was then appealed to the United States Supreme Court. That court released an opinion to today saying that the police do not need the warrant to ask for a “breath test” when the search request is made incident to an arrest– the  rule is categorical in the sense that “the mere fact of the lawful arrest justifies a full search of the person.”

The decision was based on a two-prong analysis: The degree of the intrusion the search has on a person’s individual privacy; and the degree to which the search is needed for the promotion of legitimate government interests. Stated, simply, the court concluded that breath tests are not very invasive– “all the air that is breathed into a breath analyzing machine. . . sooner or later would be exhaled even without the test.” Moreover, the court reasoned, breath tests “are capable of revealing only one bit of information, the amount of alcohol in the suspect’s breath.” This is different from blood and urine where the sample can potentially reveal much more information about the suspect.

Blood (and possibly urine) tests were deemed sufficiently invasive so that a warrant is required unless there is some other exception to a warrant requirement (such as exigent circumstances), which is to be analyzed on a case-by-case basis, is present. The court specifically said that only a breath test may be administered as a search incident to a lawful arrest for drunk driving. The court also ruled that Minnesota’s Implied Consent laws cannot be used to say that the motorist automatically agreed to submit to a blood test as a condition of being permitted to obtain a driver’s license. 

What does all of this mean? We asked Robert D. Miller, an attorney who regularly represents people charged with a crime in Dakota County. “First, the obvious, the police need a lawful warrant to take a DWI suspect’s blood unless it can be shown that there were exigent or emergency circumstances present, facts that are seldom present,”  Miller said. As to whether urine tests will be treated similarly to the court’s blood test analysis, Miller surmised, “It is likely that the taking of a urine sample will be deemed sufficiently intrusive and sensitive so as to trigger the same constitutional protection afforded to blood samples.”


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