State v. Helm

• Decision Date: 29 August 2017
• Docket Number: No. 20170036.,20170036.
• Citation: 901 N.W.2d 57
• Parties: STATE of North Dakota, Plaintiff and Appellant v. Steven Floyd HELM, Defendant and Appellee
• Court: North Dakota Supreme Court

901 N.W.2d 57

STATE of North Dakota, Plaintiff and Appellant

v.Steven Floyd HELM, Defendant and Appellee

No. 20170036.

Supreme Court of North Dakota.

Filed August 29, 2017

Cherie L. Clark (argued), Assistant State's Attorney, and Reid A. Brady (appeared), Fargo, N.D., for plaintiff and appellant.

Monty G. Mertz, Fargo, N.D., for defendant and appellee.

Danny L. Herbel (on brief), Bismarck, N.D., for amicus curiae North Dakota Association of Criminal Defense Lawyers.

McEvers, Justice.

[¶ 1] The State appeals from an order granting Steven Helm's motion to dismiss a criminal prosecution against him for refusing to submit to a warrantless urine test incident to arrest. We conclude the State may not criminally prosecute Helm for refusing to submit to the warrantless urine test incident to arrest, and we affirm the order.

I

[¶ 2] At 1:30 a.m. on May 5, 2016, a law enforcement officer observed Helm driving a motor vehicle without headlights. After interaction with Helm during a traffic stop, the officer suspected Helm was driving under the influence of a controlled substance. Helm was ultimately arrested for driving under the influence, and he subsequently refused to submit to a warrantless urine test incident to the arrest. The State charged Helm with refusing to submit to a chemical test.

[¶ 3] The district court granted Helm's motion to dismiss, ruling the requested warrantless urine test incident to arrest was like a warrantless blood test incident to arrest under Birchfield v. North Dakota , –––U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). The court concluded the exception to the warrant requirement for a search incident to arrest did not apply to the warrantless urine test and Helm could not be criminally prosecuted for refusing the warrantless urine test.

II

[¶ 4] Section 39–08–01, N.D.C.C., criminalizes a driver's refusal to submit to a law enforcement officer's request under N.D.C.C. § 39–20–01 for a chemical test of the driver's blood, breath, or urine. Section 39–20–01, N.D.C.C., provides that any individual operating a motor vehicle on a highway of this State is deemed to have given consent to a chemical test of the individual's blood, breath, or urine to determine the alcohol concentration or presence of drugs in the individual's blood, breath, or urine, and authorizes a law enforcement officer to determine which test to request. At the time relevant to this proceeding, N.D.C.C. § 39–20–01(3)(a)¹ described the implied consent advisory:

The law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take the test to determine whether the individual is under the influence of alcohol or drugs; that refusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence; and that refusal of the individual to submit to the test directed by the law enforcement officer may result in a revocation for a minimum of one hundred eighty days and up to three years of the individual's driving privileges.

[¶ 5] The State argues the district court erred in ruling the requested warrantless urine test, which the State claims would have been administered without requiring any exposure of the arrestee's genitals, was constitutionally reasonable as a search incident to an arrest for drug-based charges of driving under the influence. The State claims a critical factor for evaluating the reasonableness of a chemical test is the manner of administration and argues warrantless urine tests administered without requiring exposure of the arrestee's genitals are reasonable under the search incident to arrest exception to the warrant requirement. The State argues that not requiring exposure of the arrestee's genitals establishes a categorical rule for allowing a warrantless urine test incident to arrest for a drug-based charge of driving while impaired.

[¶ 6] The Fourth Amendment prohibits unreasonable searches and seizures, and the administration of urine tests are searches under that provision. Skinner v. Ry. Labor Execs.' Ass'n , 489 U.S. 602, 613–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ; Nat'l Treasury Emps. Union v. Von Raab , 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). The touchstone for a search under the Fourth Amendment is reasonableness and typically requires law enforcement to obtain a judicial warrant before conducting a search. Birchfield , 136 S.Ct. at 2173. Searches conducted outside the judicial process without a warrant are per se unreasonable subject only to a few explicitly established and well delineated exceptions to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

[¶ 7] The exception at issue in this case is for a search incident to a lawful arrest² , which was at issue in Birchfield , 136 S.Ct. at 2174–85. In Birchfield , at 2172, the United States Supreme Court consolidated two implied-consent cases from North Dakota and one from Minnesota "to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream." See State v. Birchfield , 2015 ND 6, 858 N.W.2d 302 ; Beylund v. Levi , 2015 ND 18, 859 N.W.2d 403 ; and State v. Bernard , 859 N.W.2d 762 (Minn. 2015). The United States Supreme Court differentiated between blood and breath tests and held the Fourth Amendment permits warrantless breath tests incident to a lawful arrest for drunk driving, but does not permit warrantless blood tests incident to a lawful arrest for drunk driving. 136 S.Ct. at 2184–85. The Supreme Court analyzed the two different types of chemical tests " 'by assessing, on the one hand, the degree to which [the tests] intrud[ed] upon an individual's privacy and, on the other, the degree to which [the tests are] needed for the promotion of legitimate governmental interests.' " Id. at 2176 (quoting Riley v. California , –––U.S. ––––, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014) ).

[¶ 8] In assessing the intrusion of blood and breath tests upon individual privacy, the Supreme Court considered three factors: (1) the extent of the physical intrusion upon the individual to obtain the evidence; (2) the extent to which the evidence could be preserved to provide additional, unrelated private information; and (3) the extent to which participation in the search would enhance the embarrassment of the arrest. Birchfield , 136 S.Ct. at 2176–78. Under that framework, the Court said warrantless breath tests incident to lawful arrests for drunk driving do not implicate significant privacy concerns because breath tests have only a slight or almost negligible impact on individual privacy, breath tests reveal only a blood alcohol concentration with no sample left in the possession of law enforcement, and breath tests are not likely to enhance the embarrassment inherent in any arrest. Id. The Court said blood tests, however, require piercing the skin to extract part of the subject's body and are significantly more intrusive than breath tests. Id. at 2178. The Court also explained a blood sample, unlike a breath test, can be preserved and reveal other private information beyond a blood alcohol reading. Id. In assessing the State's asserted need to obtain blood alcohol concentration readings for persons arrested for drunk driving, the Supreme Court recognized the government's paramount interest in preserving safety on public highways and concluded that laws criminalizing test refusals serve a very important function. Id. at 2178–79.

[¶ 9] After balancing the individual and governmental interests, the Supreme Court held the Fourth Amendment permits warrantless breath tests incident to a lawful arrest for drunk driving, but does not permit warrantless blood tests incident to a lawful arrest. Birchfield , 136 S.Ct. at 2184–85. The Court thus concluded a driver could be prosecuted for refusing a warrantless breath test incident to a lawful arrest, but could not be prosecuted for refusing a warrantless blood test. Id. at 2186.

[¶ 10] Birchfield did not address warrantless urine tests administered as a search incident to a lawful arrest. Under the Birchfield framework, however, the Minnesota Supreme Court has held warrantless urine tests are not permissible as a search incident to a valid arrest of a suspected drunk driver. State v. Thompson , 886 N.W.2d 224, 230–33 (Minn. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 1338, 197 L.Ed.2d 520 (2017). The Minnesota Supreme Court concluded the physical intrusion of a urine test on an arrestee's bodily integrity was similar to the intrusion of a breath test. Id. at 230. The court said, however, a urine test raised the same privacy concerns as a blood test regarding the amount of information obtained by law enforcement and the potential for abuse involved with the retention of a urine sample. Id. at 230–31. The court also said urine tests implicate significant privacy interests and cause considerably more embarrassment to an arrestee than breath tests, because under the urine collection instructions at issue in that case "[w]hen an arrestee submits to a urine test on suspicion of drunk driving, the arrestee must urinate, on command, 'in full view' of the arresting officer, who must witness the arrestee 'void directly into the bottle.' " Id. at 231–32. The court thus concluded the intrusion on an arrestee's privacy for a urine test was like the blood test in Birchfield :

In sum, in terms of the impact on an individual's privacy, a urine test is more like a blood test than a breath test. Specifically, although a urine test does not require a physical intrusion into the body in the same way as a blood test, urine tests have the potential to provide the government with more private information than a breath test, and there can be no question that submitting to a urine test under the watchful eye of the government is more

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