State v. Bernard, No. A13–1245.

CourtSupreme Court of Minnesota (US)
Writing for the CourtGILDEA, Chief Justice.
Citation859 N.W.2d 762
PartiesSTATE of Minnesota, Respondent, v. William Robert BERNARD, Jr., Appellant.
Docket NumberNo. A13–1245.
Decision Date11 February 2015

859 N.W.2d 762

STATE of Minnesota, Respondent
v.
William Robert BERNARD, Jr., Appellant.

No. A13–1245.

Supreme Court of Minnesota.

Feb. 11, 2015.
Rehearing Denied March 16, 2015.


859 N.W.2d 764

Lori Swanson, Attorney General, Saint Paul, MN; and James C. Backstrom, Dakota County Attorney, Tori K. Stewart, Assistant County Attorney, Hastings, MN, for respondent.

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, MN; and Steven T. Grimshaw, Minneapolis, MN, for appellant.

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, MN, for amicus curiae Minnesota Society for Criminal Justice.

Teresa J. Nelson, American Civil Liberties Union of Minnesota, Saint Paul, MN; and Howard Bass, Bass Law Firm, PLLC, Burnsville, MN; and Nicole Moen, Fredrikson & Byron, P.A., Minneapolis, MN, for amicus curiae American Civil Liberties Union of Minnesota.

William A. Lemons, Minnesota County Attorneys Association, Saint Paul, MN, for amicus curiae Minnesota County of Attorneys Association.

OPINION

GILDEA, Chief Justice.

Minnesota law makes it a crime for a driver to refuse a request to take a chemical test to detect the presence of alcohol if certain conditions are met, including that the driver has been validly arrested for driving while impaired. Minn.Stat. § 169A.20, subd. 2 (2014). The question presented in this case is whether Minn.Stat. § 169A.20, subd. 2 (“test refusal statute”), violates appellant William Robert Bernard's right to due process under the United States or Minnesota Constitutions by criminalizing his refusal to consent to an unconstitutional search. The district court held the test refusal statute was unconstitutional as applied to Bernard, but the court of appeals reversed. Because we conclude that the breath test the police asked Bernard to take would have been constitutional as a search incident to a valid arrest, and as a result, charging Bernard with criminal test refusal does not implicate a fundamental right, and that the test refusal statute is a reasonable means to a permissive object, we affirm.

This case arises from a report that police received on August 5, 2012, that three intoxicated men were attempting to get a boat out of the water at a boat launch in South Saint Paul. When police arrived at the boat launch, a witness told the officers that the men's truck became stuck in the river while they were trying to pull their boat out of the water. The witness also said that the driver of the truck was in his underwear. The officers approached the three men and saw that the truck's axle was hanging over the edge of the pavement. One of the men, appellant William Robert Bernard, was in his underwear. The officers could smell a strong odor of alcohol coming from the group. Bernard admitted to police that he had been drinking, but he and the other men denied driving the truck. Several additional witnesses identified Bernard as the driver and described him stumbling from the boat to the truck. As the officers questioned Bernard, they noted that his breath smelled of alcohol, he had bloodshot, watery eyes, and he was holding the keys to the truck. Bernard refused to perform field sobriety tests.

The officers arrested Bernard on suspicion of driving while impaired (“DWI”) and took him to the South Saint Paul police station. The officers read Bernard the Minnesota Implied Consent Advisory as required by Minn.Stat. § 169A.51, subd. 2 (2014). Specifically, police advised Bernard that Minnesota law required him to take a chemical test, that refusal to take a test was a crime, and that he had a right

859 N.W.2d 765

to consult with an attorney so long as there was not an unreasonable delay in the administration of the test. Police also gave Bernard an opportunity to contact an attorney. Bernard called his mother instead. After the call to his mother, Bernard told the officers he did not need any more time and refused to take a breath test.

The State charged Bernard with two counts of first-degree test refusal, Minn.Stat. §§ 169A.20, subd. 2, 169A.24 (2014).1 Bernard filed a motion to dismiss, arguing that the test refusal statute violated due process because the statute makes it a crime to refuse an unreasonable, warrantless search of a driver's breath. The district court ruled that the test refusal statute was not unconstitutional on its face but dismissed the charges after concluding that the police lacked a lawful basis to search Bernard without a warrant. The court of appeals reversed, holding that prosecuting Bernard for refusal to take a breath test did not violate his due process rights because the facts of the case established that the officers had probable cause and could have secured a warrant to search Bernard's breath. We granted review.

I.

The test refusal statute, Minn.Stat. § 169A.20, subd. 2, makes it a crime to refuse a chemical test administered to detect the presence of alcohol in certain circumstances. Id. (“It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication) or 169A.52 (test refusal or failure; revocation of license).”). These circumstances include when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol and the police have read the person the implied-consent advisory. See Minn.Stat. § 169A.51, subds. 1–2.

Bernard argues that Minnesota's test refusal statute, as applied to him, violates his right to substantive due process because it criminalizes his Fourth Amendment right to refuse an unconstitutional, warrantless search.2 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers,

859 N.W.2d 766

and effects, against unreasonable searches and seizures.”3 U.S. Const. amend. IV. The “ultimate measure” of a permissible government search under the Fourth Amendment is reasonableness. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Because Bernard bases his due process argument on a Fourth Amendment violation, we turn first to the question of whether a warrantless search of Bernard's breath would have been constitutional under the Fourth Amendment.

A.

The court of appeals held that the criminal charges against Bernard for refusing the breath test were constitutional under the Fourth Amendment because the officer had probable cause to believe that Bernard was driving under the influence and the officer could have sought and received a warrant based on that evidence. State v. Bernard, 844 N.W.2d 41, 47 (Minn.App.2014). The court did not find an exception to the warrant requirement for the search of Bernard's breath. Id. at 45–46. Instead, it concluded that probable cause sufficient to support a warrant was enough to support the criminal test-refusal charge. Id.

The court of appeals' analysis is contrary to basic principles of Fourth Amendment law. A warrantless search is generally unreasonable, unless it falls into one of the recognized exceptions to the warrant requirement. State v. Flowers, 734 N.W.2d 239, 248 (Minn.2007). On several occasions, the U.S. Supreme Court has explicitly rejected an exception to the warrant requirement based upon probable cause alone. See, e.g., Katz v. United States, 389 U.S. 347, 356–57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). We have also recognized that there is no probable cause exception to the warrant requirement. See State v. Ortega, 770 N.W.2d 145, 149 n. 2 (Minn.2009). Consistent with this precedent, we refuse to embrace the rule the court of appeals applied in this case.

Although the court of appeals' reasoning does not provide a basis for a constitutional search, the State advances several other theories for why a search of Bernard's breath would have been constitutional. One such argument is that police could have conducted a warrantless search of Bernard's breath as a search incident to a valid arrest. Bernard contends that because there is nothing he can do to destroy the evidence of alcohol concentration in his body, the search-incident-to-arrest exception does not apply to a search of his breath under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), and Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).

A search incident to a lawful arrest is a well-recognized exception to the warrant requirement under the Fourth Amendment. Gant, 556 U.S. at 338, 129 S.Ct. 1710; see also Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914) (explaining that the right “to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime” has been “uniformly maintained” in many cases “under English and American law”), overruled on other grounds by Elkins v. United

859 N.W.2d 767

States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Under this exception, the police are authorized to conduct a “full search of the person” who has been lawfully arrested. United States v. Robinson, 414 U.S. 218, 235, 94...

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145 practice notes
  • State v. Lindquist, No. A12–0599.
    • United States
    • Supreme Court of Minnesota (US)
    • 19 August 2015
    ...as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d 762, 774, 779 (Minn.2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignore......
  • State v. Lindquist, A12-0599
    • United States
    • Supreme Court of Minnesota (US)
    • 19 August 2015
    ...to arrest—"creating a novel bright-line rule" thatPage 34"simply readopts a per se exigency under a different name." 859 N.W.2d 762, 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignore......
  • State v. Heim, No. 115,980
    • United States
    • United States State Supreme Court of Kansas
    • 20 November 2020
    ...2012) (upholding the constitutionality of an Alaska statute criminalizing the refusal to submit to blood-alcohol test); State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that criminalizes refusal to submit to blood-alcohol test passes rational basis review).The Kansas im......
  • Beylund v. Levi, No. 20140133
    • United States
    • United States State Supreme Court of North Dakota
    • 16 February 2017
    ...case was heard and did not participate in this decision. Surrogate Judge Dale V. Sandstrom, sitting.--------Notes:1 SeeState v. Bernard, 859 N.W.2d 762 (Minn....
  • Request a trial to view additional results
145 cases
  • State v. Lindquist, No. A12–0599.
    • United States
    • Supreme Court of Minnesota (US)
    • 19 August 2015
    ...as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d 762, 774, 779 (Minn.2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignores Mi......
  • State v. Lindquist, A12-0599
    • United States
    • Supreme Court of Minnesota (US)
    • 19 August 2015
    ...search incident to arrest—"creating a novel bright-line rule" thatPage 34"simply readopts a per se exigency under a different name." 859 N.W.2d 762, 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignores Minn. ......
  • State v. Heim, No. 115,980
    • United States
    • United States State Supreme Court of Kansas
    • 20 November 2020
    ...2012) (upholding the constitutionality of an Alaska statute criminalizing the refusal to submit to blood-alcohol test); State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that criminalizes refusal to submit to blood-alcohol test passes rational basis review).The Kansas im......
  • Beylund v. Levi, No. 20140133
    • United States
    • United States State Supreme Court of North Dakota
    • 16 February 2017
    ...case was heard and did not participate in this decision. Surrogate Judge Dale V. Sandstrom, sitting.--------Notes:1 SeeState v. Bernard, 859 N.W.2d 762 (Minn....
  • Request a trial to view additional results

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