Bernard"s "Search Incident to Lawful Arrest" Controls This Breath Test Refusal Challenge

State v. Bennett, Minn.Ct.App., 7/27/2015.  Mr. Bennett refused to submit to a breath test.  The trial court convicted him on a stipulated facts court trial after the court ruled that the test refusal statute does not violate the "unconstitutional-conditions doctrine."  To prevail on this doctrine Mr. Bennett needed to establish that the test refusal statute authorized an unconstitutional search.  State v. Netland, 762 N.W.2d 202 (Minn. 2009),abrogated in part by Missouri v. McNeely, 133 S.Ct. 1552 (2013).  

Well, of course, there's State v. Bernard, 859 N.W.2d 762 (Minn. 2015). Bernard said that a breathalyzer is a "search incident to lawful arrest" so the test refusal statute does not authorize an unconstitutional search after all.   (Bernard is pending a cert petition in the U. S. Supreme Court.)  That pretty much dooms Mr. Bennett's claim.  

Chief Judge Cleary concurred, to say that he believes that Bernard is limited to a warrantless breath test.