Refusal to Submit to Warrantless DWI Blood Draw Unconstitutional

State v. Trahan, Minn.Ct.App. 10/13/2015.  Petition For Further Review GRANTED (11/25/2015).  Just when it looked like all this McNeeley/Bernard/Refusal/DWI litigation was winding down here comes another bender.  This time it’s a refusal to consent to a blood draw.  Mr. Trahan argued that the test refusal statute is unconstitutional as applied to him because it violates his substantive due process by criminalizing his refusal of an unconstitutional search of his blood.

Just a few months ago the supreme court said in State v. Bernard, 859 N.W.2d 762 (Minn. 2015) that a warrantless breath test is constitutional because it is a search incident to a lawful arrest.  Bernard, however, does not apply to refusal to submit to a blood draw.  And, even the state conceded here that a blood draw would not be justified under the search incident exception to the warrant requirement.  Instead, the state said that there were exigent circumstances, another exception to the warrant requirement.  State v. Stavish, ___ N.W.2d. ___ (Minn. 2015).  The court of appeals doesn’t agree, saying that the “totality of circumstances” for Mr. Trahan was nothing more than a garden variety DWI arrest.  In particular, the court declined to expand Stavish by saying that the two hour statutory time frame within which to acquire an exemplar was, itself, an exigency sufficient unto itself to obviate the need for a warrant.

Having found no justification for not obtaining a warrant, the court then looks at the substantive due process claim.  The right to be free from unreasonable searches is a fundamental right and is thus subject to strict scrutiny.  The court recognizes the state’s compelling interest in highway safety but concludes that the state has not shown that the test refusal statute is sufficiently narrowly tailored to serve that interest.  The state, the court said, has other viable options to address drunk driving:  ask the driver to submit to a breath test; prosecute for driving under the influence, which doesn’t require a chemical test; or get a warrant.  Thus, the court concludes:

We conclude that criminalizing the refusal to submit to a warrantless blood test “relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,” Bernard, 859 N.W.2d at 774, but it is not precisely tailored to serve that compelling state interest. It therefore fails strict-scrutiny review.

Judge Ross dissents.  He writes this lengthy libertarian opinion that he dearly hopes will be the springboard from which the Supreme Court will upend the majority’s fuzzy, feel-good reasoning.  Ross says that the majority’s insistence on a warrant for a blood draw makes the fourth amendment a sword instead of a shield.  Not only that.  The majority lets the fourth amendment back out onto the highways after the legislature had put it in the garage.  The refusal statute, it turns out, trumps the fourth amendment.  The statute empowers the drunken driver to “just say no” and there’s nothing the trooper can do about it.  The cost?  A mere sixty or so months in prison.