A suspected drunken driver can still be charged with refusing to take a breath or blood test if arresting officers believe there is enough evidence to get a search warrant to require the test — even if they don't obtain the warrant.
That's the gist of a published ruling Monday from the Minnesota Court of Appeals.
But it's a ruling that isn't likely to go into effect at least until the state Supreme Court decides whether it will hear an appeal from attorneys for the respondent, William R. Bernard Jr.
Bernard, 31, of South St. Paul, who has at least two drunken driving convictions dating from 2006, was charged August 2012 in Dakota County District Court with two felony counts of refusal to submit to a chemical test. Witnesses had identified him to South St. Paul police as the man driving a truck that had gotten stuck while attempting to remove a boat from the Mississippi River at a public boat ramp. He denied being the driver but had the keys to the truck in his hand and smelled strongly of alcohol.
District Judge Jerome Abrams dismissed the charges in July 2013, citing a U.S. Supreme Court decision that limited the power of police officers to take a blood-alcohol sample without a warrant. He did not rule the state's implied-consent statute unconstitutional, but said officers should have obtained a warrant before they brought charges. Had they done that, they could have required Bernard to take a breath or a blood test.
The state appealed.
The Appeals Court on Monday did not rule on the constitutionality of the statute, which sometimes carries a harsher penalty than a drunken driving conviction. The issue is a hotly debated topic among prosecutors, defense attorneys and legal experts. Jeff Sheridan, who represented Bernard in the appellate court case, said seven lower court judges have dismissed charges stemming from test refusals; all have been appealed.
Sheridan said criminalizing test refusal in itself is a patently unconstitutional violation of due process because it "says we can make it a crime for you not to give evidence against yourself."
He said the implication that police only need to believe that they have grounds for a search warrant, rather than going to the trouble of actually getting one, has far-reaching implications: If police believe a person is selling drugs out of their home, for example, can they search it without a warrant?
But Scott Swanson, director of academic achievement at the University of St. Thomas School of Law, said that's an "overwrought read" of the Appeals Court ruling. Police had "pretty good probable cause" to arrest Bernard for drunken driving, he said.
Ultimately a judge would have to review the test-refusal charges and did determine there was enough probable cause to charge Bernard.
Swanson, too, said the larger issue is whether implied consent is constitutional.
Meanwhile, attorney Steven Grimshaw, who represented Bernard in the lower court, said his client has been sober for 15 months. He completed a year at Teen Challenge USA, an addiction treatment center, and served two tours of duty in Iraq.
The state court records system shows Bernard's case as "dormant."
"We're obviously going to the Supreme Court with this," Grimshaw said.