This month at the U.S. Supreme Court, the fate of several states’ laws — and maybe even an interpretation of the Fourth Amendment — is at stake, all because an allegedly drunk man wearing nothing but underwear couldn’t get a boat out of the Mississippi River at a South St. Paul boat launch a few years ago.
On April 20, justices will hear the case of Bernard v. Minnesota, in which the man in question, William Bernard of Eagan, claims that the law in Minnesota that makes it a crime to refuse to take a chemical sobriety test — even if there’s no search warrant — violates the Fourth Amendment, which protects individuals from unlawful search and seizure.
That law has been on Minnesota’s books for 23 years. In considering whether to uphold it or strike it down, the high court could significantly impact roadside law enforcement procedure nationwide, and potentially set an important precedent about how broadly — or narrowly — Fourth Amendment protection may be cast.
South St. Paul boat incident gets to high court
On an August evening in 2012, police officers in South St. Paul were called to a boat launch, where three men were trying to use a truck to tow a boat out of the Mississippi River. The truck was stuck when the officers arrived; they smelled booze on all three of the men there.
Each of them denied driving the truck, but one of them, Bernard, was seen walking between the truck and the boat — wearing only his underwear — holding the keys to the vehicle. The policemen smelled alcohol on his breath, and his eyes were bloodshot. He admitted to drinking, but denied driving.
Officers asked Bernard to take a breathalyzer test, but he refused. He was then arrested and taken to the South St. Paul Police Department, where officers again asked him to take a breathalyzer test, but he said he didn’t have any reason to take one.
In 1993, the Minnesota Legislature passed a law that makes what Bernard did a misdemeanor; 12 other states — including North Dakota, which is party to a high court case consolidated with Minnesota’s — have similar laws.
In Minnesota, law enforcement officers do not need a warrant to demand a blood or breath test, but they do need to have lawfully arrested the suspect with probable cause to believe he or she was driving while intoxicated.
It’s not as though other states don’t punish the refusal of a chemical sobriety test — most levy a harsh administrative penalty, like suspending an offender’s driver’s license for a year. Those types of laws aren’t challenged because driving is considered to be a privilege, not a right, so the state has a broad mandate to employ administrative measures to encourage compliance with drunk driving laws.
Bernard is claiming that Minnesota, by making the refusal of a sobriety test a crime, has criminalized his rights — specifically, his Fourth Amendment protection from unlawful searches and seizures. Whether the Minnesota statute does that is the central question the Supreme Court will consider when oral arguments take place.
Minnesota prosecutors versus civil liberties advocates
How did this incident in South St. Paul get to the nation’s highest court? First, prosecutors in Dakota County charged Bernard with two counts of First Degree DWI–Test Refusal. The Dakota County District Court, which first heard the case, ruled that the officers had probable cause to arrest Bernard, but had no basis to require him to take a breath test — effectively ruling that Minnesota’s 1993 law violates the Fourth Amendment.
The Minnesota Court of Appeals reversed that ruling, and the Minnesota Supreme Court ultimately agreed with the Court of Appeals’ reversal (though for slightly different legal reasons). The Supreme Court found that charging Bernard with a crime “does not implicate a fundamental right” because the search happened incident to a lawful arrest.
That’s the crux of the state of Minnesota’s case before the Supreme Court: that while the Fourth Amendment protects individuals’ blood, breath and urine from warrantless search, there are exceptions if someone has been lawfully arrested.
The state leans heavily on a 1973 case, Robinson v. United States, in which the court found that law enforcement is authorized to fully search someone after they’ve lawfully been arrested. That has been interpreted to include breath and bodily fluid.
The government is also hoping the court will agree with its interpretation of implied consent: the idea that, by merely getting behind the wheel of a car, individuals consent to a chemical sobriety test even without a warrant.
A major element of the state’s case, too, is the public health impact of the Minnesota law. In its petition to the court, filed by Dakota County Attorney James Backstrom, the state writes that the criminalization of test refusal is “one of many effective tools the state uses to deter drivers from driving under the influence.” It marshaled studies that indicate the law has led to increased drunk driving convictions.
At the center of Bernard’s case is a civil liberties defense: His team argues that a ruling in the state’s favor will further narrow the Fourth Amendment, favoring law enforcement at the expense of individuals.
In its petition, Bernard’s counsel argues that “a person’s body is entitled to the highest level of protection under the Fourth Amendment, not the lowest,” and disputes the state’s interpretation of post-arrest lawful searches as inclusive of breath, blood, or urine samples.
In a friend of the court brief filed in support of Bernard, the American Civil Liberties Union outlines the essence of the civil liberties defense. It argues that the Minnesota statute doesn’t criminalize drunk driving, but criminalizes “the assertion of a constitutional right.” Fundamentally, the ACLU argues, the government cannot make it a crime for an individual to assert protection under the Fourth Amendment.
How the court may rule
Civil liberties issues like this don’t always lead to obvious splits between the court’s liberal and conservative justices. But observers have pointed out that, in recent years, the court has appeared to prefer interpretations of the Fourth Amendment that are more generous toward law enforcement. Justice Sonia Sotomayor has been a sometimes-lonely defender of the amendment: In 2014, she was the only judge to dissent in a Fourth Amendment traffic stop search case.
With one high court seat vacant, a potential 4-4 split between the eight sitting judges would uphold the Minnesota Supreme Court ruling, keeping the law on the books.
Questionable law
Yep, I always wondered about the constitutionality of that law…
What about the 5th Amendment?
Aren’t being compelled to testify against yourself if you’re punished for NOT submitting to a breathalyzer test?
A couple of additional points
Barnard v Minnesota will be heard on April 20, though as part of a trio of consolidated cases that all focus on similar Fourth Amendment concerns. The most significant of the three might well not be the Minnesota case, but rather Beylund v North Dakota, where the plaintiff is arguing that, although he consented to the test he was administered, he only did so after being informed that refusing would be prosecuted as a crime — as such, his consent is argued to have been coerced by law enforcement, in violation of his Fourth Amendment rights.
All of these cases (and other similar cases, such as Hexom v Minnesota, whose details are very similar to Beylund and is to be taken up in conference this week to determine if the case will be heard before the full court) appear to be responses to the Supreme Court’s 2013 decision in Missouri v McNeely. Missouri sought a confirmation by the Supreme Court that the fact that blood-alcohol levels naturally decrease in a person over time created an ‘exigency’ that authorized blood testing to preserve the evidence of a drunk driving violation, even in the absence of a warrant. The Supreme Court declined to authorize this, stating that the human body’s handling of alcohol in the bloodstream does not rise to a ‘per se’ exigency, and that officers should pursue warrants before performing blood tests.
Interestingly, Justice Scalia was one of the five justices that voted in the majority in McNeely, but this doesn’t mean the government has it easy; Chief Justice John Roberts wrote a dissenting opinion in McNeely arguing that, instead of merely being a suggestion, the warrant should be a requirement prior to any blood or breath test. Only Justice Thomas wholly dissented with the majority opinion.