Test Refusal Statute Does Not Implicate a Fundamental Right Under Substantive Due Process To Refuse to Submit to Testing

State v. Wiseman, Minn.Ct.App., 7/16/2012.  A Lakeville police officer stopped Mr. Wiseman on suspicion of turning without signaling.  The officer soon suspected that Mr. Wiseman may be driving under the influence; the preliminary breath test was over the legal limit.  The officer arrested Mr. Wiseman and once down at the station asked him if he would submit to a chemical test of either his blood or urine in order to ascertain his blood alcohol level.  Mr. Wiseman declined the request, opining that he had some sort of constitutional right to refuse.

Mr. Wiseman’s attorney, Jeffrey S. Sheridan, who certainly knows all that there is to know about the various DUI statutes, moved to dismiss the ensuing test refusal charge, arguing that the statute that criminalizes refusal is unconstitutional “because [Mr. Wiseman] has a constitutional right to refuse to consent passively or nonviolently to a warrantless police search and thereby refuse to submit to a chemical test.”  The trial court denied the motion after which Mr. Wiseman submitted the case on stipulated facts.  The trial court convicted Mr. Wiseman on the refusal.

This presents a substantive due process question, whether the government is acting arbitrarily or  wrongfully regardless of the fairness of the procedures used to implement those actions.  When it’s the legislature that is doing the acting, the court examines that action under whichever level of scrutiny that the law demands, strict or something less.  So, the first question is whether the refusal statute under assault here implicates a “fundamental right” which would trigger strict scrutiny examination.  In re Linehan, 594 N.W.2d 867 (Minn. 1999).  Mr. Wiseman asserted that his “right to refuse” either passively or nonviolently is a corollary to his constitutional right to be free from unreasonable searches. 

The problem is, according to Judge Wright, neither a warrant nor consent is necessary to administer the alcohol content test.  A warrantless chemical test is constitutionally reasonable if the police have probable cause to believe that the person was driving while chemically impaired because of the exigent circumstances created by ‘[t]he rapid, natural dissipation of alcohol in the blood’”.  State v. Shriner, 751 N.W.2d 538 (Minn. 2008), quoting State v. Netland, 762 N.W.2d 202 (Minn. 2009). Fee states have explicitly addressed this issue so tt’s not clear whether Shriner and Netland will come to represent a either a majority or minority view that dissipation of blood alcohol alone is a sufficient exigency to draw blood without a warrant.  (Justices Meyer and Paul Anderson dissented in Shriner and would have required the officer to have probable cause to believe that the delay in obtaining a warrant threatened the destruction of evidence.)  Missouri requires an exigency other than the dissipation of blood-alcohol evidence.  State v. McNeely, 358 S.W.2d 65 (Mo. 2012). 

When examined under a more relaxed rational basis standard, the court concludes that the statute is constitutional.