Since our county attorney was charged with implied consent refusal, I wonder if he’ll argue at the Supreme Court hearing?

U.S. Supreme Court to review constitutionality of Minnesota’s DWI test-refusal law
The state’s unique implied consent law makes it a crime for a suspected drunken driver to refuse a warrantless breath test.

By David Chanen Star Tribune DECEMBER 12, 2015 — 7:49AM

The U.S. Supreme Court agreed Friday to review Minnesota’s unique implied-consent law, which makes it a crime for a suspected drunken driver to refuse a warrantless breath test.

The case under review, State vs. Bernard, will be heard through oral arguments by local attorney Jeff Sheridan and a Washington, D.C., law firm. The court didn’t give the reason why it decided to hear the case.
Since 2002, Sheridan has argued that the state’s implied-consent law is unconstitutional. Appellate courts have issued disjointed rulings on whether a warrant should be required to administer a breath, blood or urine test, he said, adding that he believes a DWI shouldn’t be treated differently from any other crime.

“No matter how the [U.S.] Supreme Court rules, it’s going to affect 20,000 DWI tests in Minnesota each year,” said attorney Chuck Ramsay, who plans to offer a brief in support of Sheridan’s case. “And if it doesn’t change case law in Minnesota, it may cause 47 states to review their implied-consent laws.”

The case began in 2012, when William Bernard of Eagan was approached by police at a public boat ramp and asked to undergo field sobriety tests.
He refused, was arrested and was asked to undergo a breath test. He again said no, which led to felony charges for refusal to submit to chemical testing.

The state Court of Appeals upheld the law that criminalizes refusing to take the test, concluding that because police could have obtained a warrant but didn’t, Bernard could be charged for refusing to consent to the warrantless search.

In the ensuing debate over the issue, critics have contended that criminalizing refusal to take a breath test forces individuals to give up their constitutional protections without due process.

A blistering dissent

Meanwhile, the U.S. Supreme Court has ruled that taking blood and urine samples is a search under the Fourth Amendment and therefore requires a warrant.

The fact that evidence could be lost as alcohol dissipates in the blood over time doesn’t justify an exemption to the warrant requirement, the court said. Police can do a test without a warrant if the person voluntarily consents.

Earlier this year, the Minnesota Supreme Court upheld the state Appeals Court’s decision that the law that makes refusing a warrantless, involuntary breath test a crime is constitutional.

In the majority opinion, Chief Justice Lorie Skjerven Gildea said that Bernard’s warrantless breath test was legal under an exception allowing police to search a suspect in the interest of officer safety or to prevent destruction of evidence.

But a blistering joint dissent by Justices Alan Page and David Stras accused the court of departing from Fourth Amendment principles, saying the ruling nullified the warrant requirement in nearly every drunken-driving case.

“I think the Supreme Court’s ruling was incorrect,” said Sheridan. “I can think whatever I want, but it’s hard to get the conflict resolved until a higher court will intervene.”

Long list of rules for DWI

Some believe Minnesota’s implied-consent approach is key in keeping impaired drivers off the road. However, critics say it not only criminalizes a person’s right to constitutional protections against a warrantless search, but could extend beyond drunken-driving cases.

All states impose the penalty of license revocation for refusing a test, but Minnesota is one of 12 states that makes it a crime to refuse. The state also is unique in that a drunken driver can be convicted of refusing a test even if he or she is acquitted of the DWI charge, Sheridan said.

The state’s rules for punishment for a murder conviction is about a page long, but the DWI law is more than 40 pages, Sheridan said. No other state hands out a punishment before the accused ever sees a judge, he added.

After the state Supreme Court’s decision on Bernard, Sheridan said he was contacted by Yale Law School’s Supreme Court Clinic. Because of the obvious division within the courts on DWI law, he was told it was the type of case the clinic would be interested in.

Sheridan said he believes the state Supreme Court ruling missed the point.

“It’s not the nature of the intrusion, but the purpose that triggers search rules,” he said. “I’m hoping the outcome will be that Washington, D.C., tells Minnesota that the Fourth Amendment is the same in both places.”

dchanen@startribune.com 612-673-4465

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