Will the Minnesota Supreme Court Avoid the Constitutionality of Refusal? An Examination of the Search Incident to Arrest Exception.
Any time now, we expect the Minnesota Supreme Court to issue its long-awaited decision in State v. Bernard. That case will (likely) answer the question that has plagued Minnesota for years – is it constitutional to criminalize a driver’s refusal to submit to a blood, breath, or urine test?
We have previously discussed why Bernard is only “likely” to determine whether Minnesota’s DWI test refusal law is unconstitutional: the Court could avoid the question entirely by ruling that breath tests (as opposed to blood or urine tests) don’t qualify as true “searches” under the Fourth Amendment. The case law says otherwise, as does common sense, but that would be one method of postponing the ultimate fate of our DWI test refusal law. A method, but not the only method.
There is another potential side road on the path towards determining if our test refusal law is constitutional: does the “Search Incident to Arrest” Exception apply to blood, breath, and urine tests . . . which is another way of bypassing the issue altogether, and would avoid having to squarely address the legislature’s decision to punish the well-established right to say “no” to warrantless searches. As we’ve discussed previously, review of the Bernard Oral Arguments at least suggests that our state’s highest Court is looking for a new blanket exception to the warrant requirement in DWI cases. Could this be the one?
Search incident to arrest is basically a way for law enforcement to search a person (or a person’s belongings) without a warrant. This is permissible so as there is probable cause for the arrest. However, the law does not give automatic permission; there are really only two clear applications when this is allowed: (1) when it is needed for officer safety, and (2) when it is needed for the preservation of evidence that can be destroyed.
Consider these two reasons in the context of taking a person’s breath sample during a DWI arrest.
Breath does not seem to be taken from a person for officer safety, and at oral arguments the Court mostly disregarded this application. Destruction of evidence, however, was a hot topic. Justice Wilhelmina Wright at one point urged, “The body of the person has the ability to destroy [the evidence].” At first blush, the fact that people naturally sober up (destroying alcohol) would seem to provide a solid rationale for once again treating DWI tests as though they are not protected by the Constitution’s warrant requirement
But do the activities of the human liver rise to the level of actual “destruction of evidence?” When you consider it for a second, this is a pretty loose definition of the word “destroy,” a word typically used to infer some sort of extreme intentionality. The dictionary definition of “destroy” is to “put an end to something’s existence.”
In this sense, to hold that the dissipation of alcohol in one’s body is tantamount to a suspect “destroying” evidence (such as flushing drugs down a toilet) would be a feat of personification; it would give the body an intentionality it does not possess. Why? Because of a basic scientific reality: there’s actually nothing a person can do to change the rate of alcohol metabolization in their body. The only way that alcohol concentration lowers is the passage of time. Consuming coffee or water, taking a cold shower, or any other hokey remedy your college roommate told you about, all do nothing to lower one’s blood alcohol concentration. Even vomiting fails make a difference. This is crucial because, as McNeely teaches us, the rapid dissipation of alcohol in a person’s system does not create an automatic exception to the warrant requirement.
Still, at oral arguments in Bernard the Court pressed this issue with the attorneys, pointing out that search incident to arrest may be used in a less constricted ways before adding that recent cases, including the recent Riley v. California decision, may allow for further application of the exception.
Overall, the search of someone’s breath incident to a DWI arrest seems to go far beyond the purpose of the “search incident to arrest” exception to the warrant requirement . . . especially considering that exigency is precisely the problem the Court examined with the “destruction” of alcohol evidence in McNeely. It seems unlikely that the Minnesota Supreme Court will dramatically expand the scope of this particular Constitutional exception, but everyone who practices in the area of DWI defense needs to keep this possibility on their radar.
Join us later this week when we examine yet another potential side road: the “Good Faith Exception.”