Minnesota Supreme Court ponders whether a warrant should be required for alcohol tests

During oral arguments on a case about the rights of drivers suspected of being drunk, four state Supreme Court justices asked the same question Thursday: Why not just get a warrant?

In response, Assistant Dakota Attorney Tori Stewart said that requiring police to get warrants before alcohol-level testing would be cumbersome to law enforcement. More than 25,000 drunken drivers were charged last year in Minnesota.

Merely asking the question doesn't indicate how a justice will rule, but the skepticism expressed by a majority of the seven on the high court at Thursday's hearing in St. Paul was unusual. The court is being asked to decide whether law enforcement officers must get a warrant if a driver refuses to consent to testing of his or her breath, blood or urine for alcohol content after having been pulled over on suspicion of drunken driving.

Lawyer Jeff Sheridan, who represents the defendant in the case, said the justices must answer two questions in their ruling: Does an individual have a constitutional right to withhold consent to a search? And, can the state make it a crime to assert a constitutional right?

This area of the law has been actively debated in Minnesota and some parts of the country in the past couple of years, largely because of a March 2013 U.S. Supreme Court ruling. In that case, Missouri vs. McNeely, the high court said police must try to get a warrant for a blood sample if they want the conviction upheld in court. The court said the fact that alcohol dissipates from the body over time doesn't justify not getting a warrant.

In a ruling a year ago, the Minnesota Supreme Court ruled that a driver who agrees to provide a blood or urine sample without a warrant can still be convicted. The case, however, left undecided the question of whether the state's 1961 implied-consent law is constitutional. That law says anyone with a driver's license had automatically agreed to chemical testing during a DWI arrest and the results can be used against them in criminal court.

Sheridan takes issue with the part of the law that also makes it a crime — punishable by up to seven years in prison — for refusing to take the test.

Sheridan argued that the exception applies in two situations — officer safety, such as searching a person for weapons, and preservation of evidence that can be destroyed.

Justice Wilhelmina Wright said, "But the body has the power to destroy" the alcohol through metabolization.

Sheridan responded that her comment was in opposition to the high court's ruling in the Missouri case. He argued, as well, that a person can only "metabolize" the evidence in the body, not destroy it.

Stras asked whether drivers have provided "implied consent" to testing simply by driving. Sheridan said no. "Implied consent is a misnomer," he said. "Consent is required."

Stewart argued that the McNeely case doesn't apply in Minnesota because the U.S. Supreme Court was shocked at how Missouri was strapping down suspects and "piercing the skin" to draw blood — something not done here.

Shortly after that, Chief Justice Lorie Gildea asked why getting a warrant is a "bad thing."

"Why is it a big deal?" she asked. "Just get a warrant."

Stras also asked, "What's the big deal, especially when the law can be changed to make it a civil penalty?"

Stewart countered that administrative penalties for drivers aren't enough to compel drivers to take the tests. The state's argument is that it's "reasonable" to not have to get a warrant, she said.

Page, however, called a civil penalty a "pretty strong incentive to take the test."

Page said, "Consent to an illegal search?"

Stewart said the search isn't illegal if it's "reasonable" and said changing the policy would be detrimental to public safety.

Page countered, "We're not talking about a policy choice, we're talking about the Fourth Amendment."

Sheridan also noted that all 50 states have implied-consent laws, but only 11 criminalize the refusal to take a test. In an unusually long stretch of uninterrupted argument, Sheridan said the Fourth Amendment was ratified in 1791, a time when obtaining a search warrant from a judge was a time-consuming process.

"I can assure you the Fourth Amendment was not designed as an aid to law enforcement," he said.