State v. Bernard, 2014 Minn. App. LEXIS 27

Background

William Bernard was arrested after witnesses and officers identified him as the driver of an intoxicated vehicle; he smelled of alcohol, had bloodshot eyes, held the truck keys, and refused field sobriety tests.
At the police station Bernard was read the Implied Consent Advisory, declined to contact an attorney, and refused to submit to a breath test.
The state charged Bernard with two counts of test refusal under Minn. Stat. § 169A.20, subd. 2 (2012).
The district court dismissed the charges, reasoning McNeely required a totality-of-the-circumstances showing of exigency to justify a warrantless search and that no such exigency existed here.
The state appealed; the court of appeals considered whether prosecution is barred when the officer lacked a constitutionally permissible basis to force a warrantless test at the time of the request.
The court of appeals reversed, holding prosecution permissible where the officer had lawful means (e.g., a warrant) to obtain a nonconsensual test even if a warrantless test could not have been compelled at that moment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the state may criminalize refusal to submit to a chemical test when a warrantless search would not have been constitutionally permissible	Bernard: McNeely eliminated per se exigency; without justification for a warrantless test, criminalizing refusal violates due process	State: Officer had probable cause and could have obtained a warrant; existence of a constitutionally viable nonconsensual option supports prosecution	Court: Reversed — prosecution permitted because officer had lawful alternative (obtain a warrant) making the request tied to a constitutionally reasonable search
Whether Wiseman limits prosecution to refusals of actually lawful warrantless searches	Bernard: Wiseman confines prosecutions to refusals of searches that were lawful without a warrant	State: Wiseman recognizes prosecutions where a constitutionally reasonable nonconsensual option existed	Court: Wiseman read broadly — prosecution allowed when a reasonable nonconsensual means (including warrant) was available
Whether the exigent-circumstances rule of McNeely bars criminal penalties for refusal absent exigency	Bernard: McNeely removes the per se exigency that justified prior warrantless testing, so refusal cannot be punished	State: McNeely does not forbid prosecutions where a warrant or other constitutionally reasonable alternative existed	Court: McNeely does not bar prosecution here because the officer could have obtained a warrant
Whether different Fourth Amendment treatment of blood vs. breath testing affects prosecution	Bernard: (implicit) bodily intrusions pose greater protection	State: breath tests are less intrusive, may allow warrantless testing	Court: did not resolve; emphasized exigency remains the key factor and did not rely on breath-vs-blood distinction

Key Cases Cited

Missouri v. McNeely, 133 S. Ct. 1552 (2013) (natural dissipation of alcohol does not create per se exigency; exigency judged by totality of circumstances)
State v. Wiseman, 816 N.W.2d 689 (Minn. Ct. App. 2012) (implied-consent refusal punishable when refusal thwarts a constitutionally reasonable police search)
State v. Brooks, 838 N.W.2d 563 (Minn. 2013) (analyzing consent under implied-consent advisories; defendant there consented)
State v. Shriner, 751 N.W.2d 538 (Minn. 2008) (earlier Minnesota precedent treating dissipation as per se exigency; later abrogated by McNeely)
State v. Netland, 762 N.W.2d 202 (Minn. 2009) (discussing exigent-circumstances exception for chemical testing)
Schmerber v. California, 384 U.S. 757 (1966) (compelled blood draws analyzed against exigency and search-incident-to-arrest doctrines)
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (compelled breath/blood tests are searches under the Fourth Amendment)
Arizona v. Gant, 556 U.S. 332 (2009) (limits on search-incident-to-arrest doctrine)
Kentucky v. King, 131 S. Ct. 1849 (2011) (exigent-circumstances exception to warrant requirement)