Bob CollinsThe Minnesota Court of Appeals is running out of ways to say it: It’s not unconstitutional to impose a criminal penalty on someone who refuses to take a breath test when stopped for suspicion of drunk driving.
In its latest declaration, the court today turned aside a challenge from David Bennett, who refused to take a test in 2013 after he rear-ended another car on I-35W in New Brighton.
When the police arrived, Bennett was lying across the front seat “in a relaxed state.”
An initial breath test showed his blood alcohol level at .152, but he refused to take another breath test later.
At his trial, the DUI charged was dismissed, but he was convicted of refusing to take the test and was fined and put on two years probation.
His challenge is a familiar one in Minnesota. He argues chemical testing is unconstitutional because it compels a person to relinquish Fourth Amendment rights as a condition of maintaining a driver’s license and avoiding criminal punishment.
There have been more of these challenges since the U.S. Supreme Court ruled that the the natural dissipation of alcohol from a person’s bloodstream does not justify a warrantless blood test.
“The warrantless breath test that Bennett refused would not have been an unconstitutional search because it would have been a valid search incident to a lawful arrest,” Court of Appeals Judge Matthew Johnson wrote in today’s ruling (pdf), which included an unusual concurring opinion from Chief Judge Edward Cleary which raised the possibility that the larger question of warrantless searches of bodily fluids may be unconstitutional.
Cleary said today’s ruling is narrow in scope, and warned against a broader application of a Minnesota Supreme Court ruling earlier this year, which some members of the Supreme Court said disregarded the U.S. Supreme Court’s position
“Because the test-refusal statute penalizes the refusal of all types of chemical alcohol concentration testing, and because no Minnesota precedent holds that warrantless blood and urine tests are justified under the search-incident-to-arrest exception, I write separately to posit that the test refusal statute may well violate the unconstitutional-conditions doctrine as it pertains to warrantless blood and urine tests,” Cleary said.
