The issue of implied consent and DWI test refusal has played out in some very prominent cases over the past year. Last summer, the United States Supreme Court issued what many called a landmark ruling in the case of Missouri vs. McNeely. The Minnesota Supreme Court also issued a definitive ruling in the case of State vs. Brooks last fall.

As of March 17, the Minnesota Court of Appeals has issued another ruling related to the state's implied consent law with the State vs. Bernard ruling. What was the ruling and how does it differ from others previously mentioned? Let's take a look.

The Facts

Police officers had received a call that three intoxicated males were pulling their boat from the water, and witnesses at the scene pointed police towards Bernard, describing him as him as the truck's driver. All three denied moving the truck.

Bernard, who smelled of alcohol, was holding the keys at the time and was identified as the individual who had moved the truck. When asked, Bernard refused to take a field sobriety test and was taken into custody by South St. Paul officers, transported to the police station, and read the Implied Consent Advisory. Bernard chose not to contact an attorney and once again refused to take a breath test. He was ultimately charged with two counts of DWI-Test Refusal, a Gross Misdemeanor in the state of Minnesota.

The Case in District Court

The defense originally moved for dismissal, citing the Missouri vs. McNeely (mentioned above). Bernard argued that the McNeely decision “precluded the state from criminalizing refusal to submit to a breath test.”

Bernard further argued that Minnesota's implied consent law was unconstitutional. While the district court did not call into question the constitutionality of the implied consent law, it concluded “Bernard's conduct could not be subject to criminal charges.” The District Court's reasoning was that there was no basis for “searching” the defendant's breath because there was not a warrant and there was not an exception for needing a warrant. Specifically, there was not an exigent circumstance (this was ruled out by McNeely) and there was not consent (this was ruled out by Brooks).

Because there was no valid exception the warrant requirement, Bernard could not be searched. So, in the District Court's perception, he therefore could not be charged with refusal.

The Case at the Minnesota Court of Appeals

On March 17, the Minnesota Court of Appeals, however, disagreed and upheld the implied consent law.

“We reverse because the state may prosecute a suspected drunk driver for test refusal under the implied consent law when the requesting officer had other lawful means to obtain a nonconsensual test.”

In the decision, Judge Ross writes: “The state is not constitutionally precluded from criminalizing a suspected drunk driver's refusal to submit a chemical test under circumstances in which the requesting officer had grounds to have obtained a constitutionally reasonable nonconsensual chemical test by securing and executing a warrant requiring the driver to submit to testing.”

This means that if police have the means to obtain a warrant (rather than having one or there being an exception to getting one), then they have a basis for charging refusal.

Moving Forward

McNeely was a landmark Fourth Amendment case that changed DWI law in that blood dissipation is no longer individually sufficient to bypass the warrant requirement. This, however, does not appear to have a significant effect on refusal cases because Bernard allows refusal charges when police had the ability to obtain a warrant.

Bernard also shows us that state courts have now upheld the implied consent scheme in both the State vs. Brooks case and the State vs. Bernard case—each with different consequences for those charged with DWI offenses. This grey area of the law is ripe for clarification. There will be many challenges made under McNeely in the future.

If you are facing charges related to DWI law or Minnesota's implied consent law, you need experienced legal counsel. Contact Attorney Eric J. Olson for vigorous defense and unrivaled results.