Supreme Court holds that warrantless DWI blood testing is unconstitutional, while also approving warrantless breath testing

Today the Supreme Court of the United States released the much anticipated and long awaited decision in Bernard v. Minnesota. Justice Alitio, delivering the opinion of the Court, said:

“Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”

Bernard was charged with the Minnesota crime of test refusal when he refused to submit to a breath test after being arrested on suspicion of DWI. The district court had dismissed the test refusal charge, finding that it was unconstitutional to criminalize refusal to submit to a warrantless search. The Minnesota Supreme Court reversed that decision, finding that warrantless breath testing in DWI investigations is permissible under a long standing exception to the search warrant requirement – the search incident to arrest exception. Today the United States Supreme Court upheld the decision of the Minnesota Supreme Court. The Court balanced driver’s privacy interests against the government’s strong interest in promoting public safety on the nation’s highways and the minimally invasive nature of breath testing. It concluded that breath testing is categorically permissible under the search incident to arrest exception.

The Bernard case was consolidated with two North Dakota cases at the Supreme Court. Both North Dakota cases involved blood testing. In one, the driver was charged with refusing to submit to a blood test. In the other, the driver submitted to a blood test after being advised that it was a crime if he refused the test. The Supreme Court today held that a search warrant must be sought and obtained before subjecting drivers to blood tests. The Court also held that it is impermissible for the government to criminalize refusal to submit to a warrantless blood test.

Today’s decision may have a dramatic impact on blood and urine testing in Minnesota. Currently, two cases are under advisement at the Minnesota Supreme Court. Trahan involves blood testing and Thompson involves urine testing. Under current Minnesota law, it is at least a gross misdemeanor crime to refuse both blood and urine testing. The Bernard decision should lead to the conclusion that Minnesota’s test refusal law is unconstitutional as it relates to blood and urine testing. Further, DWI charges brought after the driver “consented” to a blood or urine test should now be thrown out because those drivers were threatened with criminal prosecution, when we now know that such criminal prosecution would have violated the Fourth Amendment.