Probable Cause To Have Obtained a Search Warrant For a Breath Test Justifies Criminalizing Suspect Drunk Driver’s Refusal to Submit to Chemical Test

State v. Bernard, Jr., Minn.Ct.App., 3/17/2014.  The state charged Mr. Bernard, Jr. with test refusal after he refused to take a breath test to find out if he was driving under the influence of alcohol.  The trial court dismissed the charge.  The court said that the state could criminalize Mr. Bernard’s refusal to submit to a “search” – the breath test – only if it could show that under the traditional “totality of the circumstances” test those circumstances justified a warrantless breath test.  The trial court concluded that the state could not make that showing and so dismissed the charge.

The court of appeals assumed that the officer would not not have been justified to conduct a warrantless “search” – the breath test.  In other words, the court assumed that there were no exigent circumstances that would dispense with the requirement of getting a warrant.  However, the court then comes at the problem from the other side.  The court goes on to say that “indisputably” the officer would have got that warrant had the application been present to the magistrate.  That makes the officer’s request of Mr. Bernard to submit to the test not just an “appropriate” request, but a “lawful” one.  See State v. Wiseman, 816 N.W.2d 689 (Minn.Ct.App., 2012). 

The court does offer the non-binding opinion that a warrantless breath test cannot be supported as a search incident to arrest; it must also satisfy the exigency requirement. The court ducked the “unconstitutional conditions” argument.