A Breathalyzer Is a “Search” Incident to Lawful Arrest

State v. Bernard, Jr.,, Minn.S.Ct., 2/11/2015. Petition For Cert to U.S. Supreme Court GRANTED (12/1/2015).  This is the long awaited DUI test refusal opinion. Bernard, Jr. said that the refusal statute is unconstitutional because it makes criminal the exercise of a right to refuse to consent to an unconstitutional search. Whether in a particular case the submission to a breath test is an unconstitutional search turns largely on how (or how far) one reads the McNeeley opinion. McNeeley upended what had been the prevailing view that Schmerber established pretty much an unwritten rule that the natural dissipation of alcohol in the body was a sufficient exigency to permit a forced breath test without a warrant. The five justice McNeeley majority said, no, that's not what Schmerber meant. The cop on the scene of a DUI arrest needs a warrant unless the circumstances of that arrest make that an unreasonable endeavor.

So, just as Schmerber did not - apparently - always dispense with the warrant requirement because of dissipation McNeeley does not always obligate a warrant because of dissipation.

A driver's refusal to submit to alcohol content testing is to go down the rabbit hole. Even drunks out on the roads who are annually causing roughly thirty percent (30%) of highway deaths nationally cannot be constitutionally punished for the exercise of a constitutional right. If McNeeley requires a warrant in the particular circumstances under review then the refusal to blow into the tube is constitutionally protected.

The court of appeals thought it could climb out of the rabbit hole by asking whether the cop on scene could have obtained a warrant. What came to be known as the "virtual warrant" was surely not going to survive and it did not. In its stead, Chief Justice Gildea, for five members of the court, extends a well known exception to the warrant requirement - search incident to lawful arrest - to extract the very breath out of your lungs. Back down (deeper) into the rabbit hole.

In the days between Schmerber and McNeeley, lower courts more or less glossed over just what the justification was for a forced alcohol test without a warrant. Schmerber, at least as it came to be applied, didn't require paying much attention to articulating a justification. Schmerber rather quickly morphed into a convenient "rule of thumb" that the dissipation of alcohol was enough to support the forced alcohol test without a warrant. Those sanguine days are, of course, now gone. After McNeeley, a warrant may be the default but McNeeley may still let the magistrate get a lot of shut eye.

In the interim between Schmerber and McNeeley a small handful of courts did say, without much thought, that a forced alcohol test without a warrant is a "search" incident to a lawful arrest. And a reasonable one at that. Schmerber did not say that; what it did say was:

Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.

See, generally, "Do Warrantless Breathalyzer Tests Violate the Fourth Amendment?." (Sorry, Westlaw subscription required.).

Justices Page and Stras, penning a joint dissent, were horrified by the adoption of this rationale. It finds no support from the U.S. Supreme Court and most of the opinions that have relied on this theory are before McNeeley and so are of dubious validity.

It's a disconcerting theory on which to rely for sure. While routine trips to the local ER for prostate exams or other body cavity intrusions of suspects doesn't seem to be on the horizon, what of more routine, less invasive intrusions? DNA cheek swabs? Or Heimlich maneuvers to force the expulsion of drugs from an arrestee's mouth? Cf. State v. Hardy, 577 N.w.2d 212 (Minn. 1998). Genital swabs? Cf. State v. Zornes, 831 N.W.2d 609 (Minn 2013). It was not lost on any of the justices that just last term the Supreme Court said that cops need a warrant to view the contents of a cell phone. That is not required, say five members of the Minnesota Supreme Court, to "view" an exemplar of breath in order to measure alcohol content. The juxtaposition of the constitutional protection afforded to one's "selfies" and one's breath is jolting. Bernard, Jr. creates the very "bright line rule" that McNeeley just rejected.

Which begs the question, did the court of appeals really get it so wrong, or did they just answer the wrong question? McNeeley asks whether the cop's decision to forgo getting the magistrate out of bed in the middle of night to sign (actually or electronically) a search warrant was reasonable under all the circumstances? Not whether the magistrate would have signed the warrant but whether it was reasonable to dispense with finding out. Was it really necessary for Justice Gildea to significantly expand the breadth of "search incident to lawful arrest" to save the refusal statute? Is not the analysis now required under McNeeley - a totality of circumstances analysis - the same whether the suspected drunk driver blew or refused to blow?

If asked to do so, Bernard's expansion of the search incident doctrine, in the face of Riley and Gant, both of which circumscribed the reach of the doctrine, may well provoke SCOTUS once again to take a look at Minnesota's handiwork.