Warrantless Urine Test Is Not Authorized Under Search Incident to Arrest Exception to Warrant Requirement

State v. Thompson, Minn.Ct.App., 12/28/2015.  The year comes to a close as it began with yet more skirmishing over the constitutionality of DWI/test refusals.  Back in February the state supreme court said in Bernard that a warrantless breath test was constitutional under the search incident to arrest exception to the warrant requirement. In October the court of appeals then said, well, that's fine, but Bernard only applies to warrantless breath tests and we don't think that a warrantless blood draw is permissible under the search incident exception.   State v. Trahan.  The state supreme court quickly accepted review of that case, but then the U.S. Supreme Court accepted cert in State v. Bernard.  Time will tell who laughs last.

This go round the court of appeals once again pokes the state supreme court in the eye, this time over charging Mr. Thompson with refusal to submit to a warrantless urine test.  The court of appeals cuts and pastes from its Trahan opinion to reach the same conclusion about warrantless urine tests: it's not constitutional under the search incident exception to the warrant requirement because of its intrusiveness.  In fact, if anything, a urine test is even more intrusive:

“There are few activities in our society more personal or private than the passing of urine.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413 (quotation omitted). Because a driver must produce a urine sample in front of an officer, a urine test is unquestionably more intrusive than a breath test. See Bernard, 859 N.W.2d at 768 n.6 (explaining that a breath test is less invasive than a blood or urine test). A urine test “intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S. Ct. at 1413.

The court also concludes, as it did in Trahan, that a warrantless urine test violated Mr. Thompson's substantive due process right to be free from unreasonable searches.