High court draws line between blood and breath

Court rules police need warrant to draw blood, but not for breathalyzer test

By Mike Mosedale
The Daily Record Newswire

ST. PAUL, MN - If the police officer at the South St. Paul boat ramp had asked suspected drunken driver William R. Bernard Jr. to give a blood sample, Bernard would be a lot happier right now.

But the officer didn't ask for Bernard's blood, he asked him to blow into an Intoxilyzer, and Bernard, who had already racked up four prior impaired driving convictions, refused to comply.

Nearly four years after the initial arrest - with detours before the Minnesota Court of Appeals, the Minnesota Supreme Court, and, most recently, the U.S. Supreme Court - the Inver Grove Heights man is back where he started: facing a first-degree test refusal charge in Dakota County District Court and the unenviable prospect of a three-year minimum mandatory sentence if he is convicted.

For that, Bernard can thank (or curse) the majority of the U.S. Supreme Court, which ruled June 23 that the Fourth Amendment's general prohibition against warrantless searches applies in drunken driving cases involving blood draws but not breath tests. The court heard three consolidated cases, including Bernard v. Minnesota, under the title Birchfield v. North Dakota.

In drawing that distinction, the high court affirmed last year's decision from Minnesota Supreme Court, which ruled that Bernard could be prosecuted for refusing to give a breath test, absent a warrant, under the search-incident-to-arrest exception.

In two companion cases out of North Dakota, however, the high court said police need to get a warrant if they want to draw blood from a suspect and, further, they can't force compliance by telling a suspect that it's a crime to refuse a blood draw if they don't have a warrant.

In the view of the court's 6-2 majority, it all came down to the nature of the tests. Because breath tests are less intrusive, the court said, they don't implicate the same privacy interests as a blood draw.

"Humans have never been known to assert a possessory interest in or any emotional attachment to any of their air in their lungs," wrote Supreme Court Justice Samuel Alito, who penned the opinion for the majority. By contrast, Alito wrote, a blood test involves "a piercing of the skin" that is "significantly more intrusive than blowing into a tube."

Dakota County Attorney James Backstrom, whose office is prosecuting Bernard, said the court made the right call with Bernard.

"We're very pleased that the Supreme Court recognized that breath tests aren't as intrusive as blood tests," Backstrom said. "From a law enforcement perspective, this is a very positive ruling."

Backstrom also offered words of praise for Kathryn Keena, the head of Dakota County's criminal division and the prosecutor who argued the state's case before SCOTUS.

"She did a fabulous job and I'm very appreciative of her work," said Backstrom. "The so-called experts who analyzed this case after the oral arguments didn't give us much of a chance of being successful in any respect. Obviously, they were completely wrong when it came to the breath test."

Backstrom said Bernard marks just the third time the Dakota County Attorney's Office has taken a case all the way to the U.S. Supreme Court. Backstrom said he successfully argued a criminal case before the court in the late 80s and Harold Stassen won a civil case there in the 30s.

Jeff Sheridan, Bernard's attorney, said he was disappointed by the ruling, which he said has effectively carved out "a DWI exception to Constitution."

"I didn't think they were going to split the baby in half and come up with one rule for breath tests and one rule for blood tests. This is a sharp division from historical precedent and, frankly, a scary one," Sheridan opined.

Sheridan said the court's past jurisprudence on the constitutionality of warrantless searches has focused on the purpose for the search, not the nature of the search.

For instance, he said, a pat down of an arrestee is considered constitutional under search-incident-to-arrest doctrine because police have legitimate safety concerns in ensuring that an arrestee isn't carrying a weapon. But he said a breath test of a suspected drunk driver has a different purpose: to collect evidence for prosecution.

Although the SCOTUS ruling doesn't help his client, Sheridan pointed out that the court's holding on blood draws still means the Minnesota Legislature will need to rewrite the state's implied-consent advisory, which authorizes police to demand breath, blood, or urine samples from suspected drunk drivers.

"It's only happenstance that the test they required [of Bernard] was a breath test," Sheridan said. "Bernard could have been on the winning side of this by virtue of what word slipped out of the officer's mouth during the reading of the advisory. So this is by no means a vindication of Minnesota's test refusal law. The refusal law is unconstitutional because it makes every test refusal a crime."

Although SCOTUS did not address the issue of urine tests, many observers - including Backstrom - think that the Supreme Court's privacy interest analysis in Bernard suggests that urine tests, like blood draws, will require warrants.

Dan Koewler, a criminal defense attorney who argued that very point in a case before the Minnesota Supreme Court a couple of weeks ago, said most police agencies have been getting warrants before seeking blood or urine samples in the wake of the U.S. Supreme Court decision in 2013 case, Missouri v. McNeely.

Still, Koewler said the Minnesota Legislature needs to amend the language of its test-refusal law and implied-consent advisory to avoid further litigation.

Could that be achieved by simply striking references to blood or urine tests from the implied-consent advisory?

"That could be one way," Koewler ventured. "The tricky part [with the statute] is how everything is so interconnected. A quick fix might create more gray areas."

And if the language of the implied-consent advisory is faulty, he said, the question remains whether drivers who do submit to testing actually consented.

"What does consent look like if you tell someone that refusing is a crime? We're going to see a lot more litigation on that point in the near future," said Koewler, an associate at Charles A. Ramsay & Associates.

The chair of the Judiciary Committee of the Minnesota Senate, Ron Latz, DFL-St. Louis Park, said he hasn't yet reviewed the Bernard decision in detail and could not comment on what legislative fixes it will require. David Bernstein, chair of the state's DWI Task Force, said the task force will meet July 8 to discuss those issues. He said he didn't expect it would be a heavy lift.

Ted Sampsell-Jones, a professor at Hamline Mitchell School of Law, said he was "not really surprised" by the high court's rulings in Bernard and the two associated cases.

While the warrant requirement for blood (and likely urine) will require adjustments in police practices, he said neither would produce much of a disruption.

"One big picture reality: It's really not very hard to get a warrant," said Sampsell-Jones, who added that will likely become even easier soon because of a streamlining in the process for getting electronic warrants.

Published: Mon, Jul 11, 2016

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