Constitutional Challenge to Criminal DUI Test Refusal Fails on Both Due Process and Fourth Amendment Grounds.

Minnesota v. Netland, Minn.S.Ct. (February 12, 2009).  A jury convicted Ms. Netland of second degree criminal test refusal.  Ms. Netland argued that the manner in which the breathalyzer was administered to her violated due process; and that the criminal test refusal statute violated her right to be free from unreasonable searches and seizures. 

Police arrested Ms. Netland on suspicion of driving under the influence.  At the police station, an officer read her the implied consent advisory, which Ms. Netland acknowledged she understood; and permitted her to consult with counsel.  Counsel advised her to take the test; Ms. Netland asked the officer for a blood test.  The officer said, sorry, I'm only giving breath tests today.  She said, okay. 

Now, here the facts, I think, get a bit murky.  At first it seemed from the Opinion that poor Ms. Netland took the test nineteen times, but that's incorrect.  What she apparently did was to blow into the machine a great many times during the administration of the test.  The Intoxilyzer "times out" after four minutes.  During this first test, Ms. Netland apparently blew and blew into the damned machine nineteen (19) times; not once did the machine acknowledge her effort as sufficient.  (There is also a complaint that the officer didn't allow the machine to run its full, four minute course.)  The officer warned her early on in her breath efforts that she was on her way to a refusal, which is what happened.  (Indeed, the officer thought that Ms. Netland was trying to game the machine.)  At the end of the first test, distressed but undaunted, Ms. Netland asked to take the test again.  Exasperated and suspicious, the officer refused, and scored her as a refusal.  The officer did honor her request for an independent test, peeing in this instance.  This produced a reading of 0.036.  (The jury acquitted her of driving under the influence.)

The Court of Appeals had concluded that Ms. Netland's due process rights had been violated because she had not been given "a meaningful opportunity to obey the law" when the officer declined her request to take the breath test again.  The Supreme Court rejects such a due process standard out of hand.  Instead, the Court looks at the "unfairness"/due process claims that Ms. Netland made.

First, she said that the officer stopped the breath test before the machine had timed out, and then would not allow her to take a second test.  Second, she said that this testing behavior shocked (or, should, at any rate) the conscience of the court.  Justice Gildea, writing for only four members of the court, rejects both of these arguments. 

The Court also holds that the single exigency of the rapidly dissipating blood alcohol evidence authorizes the taking of a blood alcohol test without a warrant.  Justices Paul Anderson and Page dissent.  Justice Meyer had expressed similar views but in a felony vehicular operation Opinion, State v. Shriner, 751 N.W.2d 538 (Minn. 2008), but she did not join Justice Anderson's dissent.

Justice Meyer would not have reached the due process issue.  Rather, she would have upheld the Court of Appeals but on statutory grounds.  In her view of the statute, Ms. Netland's behavior did not violate the criminal refusal statute.  Justices Page and Paul Anderson joined this dissent.