It is no longer a crime in Minnesota for drivers to refuse to take a warrantless blood or urine test in the absence of exigent circumstances.
Following the direction of the U.S. Supreme Court in Birchfield v. North Dakota, the Minnesota Supreme Court said the Fourth Amendment does not allow a driver to be prosecuted for refusing such tests. The court handed down two decisions on Wednesday, Oct. 12 addressing the constitutionality of the test refusal statute, Minn. Stat. sec. 169A.20, subd. 2. They are State v. Thompson and State v. Trahan.
It is still a crime to refuse to take a breath test.
The options available to law enforcement are to require a breath test, obtain a warrant for a blood or urine test, or take a forcible test and convince a court that exigent circumstances permitted it, said attorney Daniel Koewler. Koewler, along with the state appellate public defender, represented the driver in Thompson.
The court was unanimous in both cases, with Justices Margaret Chutich and Anne McKeig not participating. Chief Justice Lorie Gildea wrote the opinions.
The court did not address the retroactivity of the ruling.
Thompson: Privacy rights
In Thompson, the court rejected the state’s argument that a warrantless urine test is constitutional as a search incident to a valid arrest.
In Birchfield, the U.S. Supreme Court said that the court must balance the intrusion upon the individual’s privacy against the state’s interests. The privacy standard considers the intent of the physical intrusion, the extent to which the evidence extracted could provide additional, unrelated information and the extent to which the search would enhance the embarrassment of the arrest. Using that standard, the Birchfield court upheld Minnesota’s decision to allow warrantless breath tests but not North Dakota’s criminalization of blood tests.
Birchfield is dispositive with respect to warrantless blood tests, the Minnesota court said in Thompson. It then concluded, based on the Birchfield considerations, that a warrantless urine test is also unconstitutional.
Although the urine test does not involve penetration of the skin, it does provide a sample that gives information beyond blood alcohol content, as does a blood test. It reveals medical information and the sample can be retained and used contrary to law. Therefore, taking a urine sample raises the same privacy concerns as does the blood test addressed in Birchfield, the court said.
The court also said that giving urine samples implicates privacy interests and could cause embarrassment and is not the same as a body search. “Compared to blood testing, which does not involve an arrestee performing a private bodily function in front of law enforcement, urine testing involves a much greater privacy invasion in terms of embarrassment,” the court said.
The state’s need to prevent drunken driving can be satisfied by a breath test or obtaining a warrant, the court continued. “[T]he availability of a less-invasive breath test weighs against the reasonableness of requiring the more revealing and embarrassing urine test absent a warrant or exigent circumstances,” Gildea wrote.
Trahan: No exigency
Trahan involved the refusal to take a warrantless blood test.
The state conceded that the U.S. Supreme Court in Birchfield rejected its primary contention, which was that criminalizing refusal was reasonable under the Fourth Amendment. The court agreed and said that criminalizing a blood test refusal was unconstitutional absent the existence of a warrant or exigent circumstances.
But based on the state’s version of the facts, there was no exigency, the court continued. The standard for determining exigency in the context of a warrantless nonconsensual blood test is whether (1) it was objectively reasonable for the officer to believe he was faced with an emergency where (2) the delay necessary to obtain a warrant would significantly undermine the efficacy of the search (3) based on all the facts reasonable available to the officer at the time of the search.
The U.S. Supreme Court ruled in 2013 in Missouri v. McNeely that the dissipation of alcohol is not a single-factor exigency. In Trahan, the court repeated its earlier statements that collecting a blood alcohol sample within two hours of an accident or arrest best ensures that the evidence is reliable.
However, Trahan did not present an exigency, the court continued. The defendant did not refuse a blood test until slightly more than two hours after he was stopped and he was in custody and accessible to police. Furthermore, he would have been transported to a hospital for the blood draw, giving police time to obtain a warrant.
The court also turned back the state’s argument that the good-faith exception to the exclusionary rule applies because the police relied on binding precedent in good faith. The defendant was not seeking to exclude evidence so the rule did not apply, the court said.