It's Official: Bernard Does NOT Apply to Blood and Urine Tests

Posted On February 03, 2016

The dismantling of an unconstitutional statutory scheme is, evidently, a slow process.

As of Monday, we are one small step closer to constitutional fidelity. In its unpublished opinion in State v. Thach, the Minnesota Court of Appeals acknowledged that the search-incident-to-arrest exception does not apply to blood and urine tests:

In Trahan, this court held, based on the state's concession, that Bernard does not apply to a blood test and that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine. Similarly, in Thompson, this court held that Bernard does not apply to a urine test and that a warrantless urine test cannot be justified by the search-incident-to-arrest doctrine. Collectively, Trahan and Thompson compel the conclusion that, in Thach's case, the administration of a warrantless blood test or a warrantless urine test would not have been a valid search incident to his arrest.

This conclusion logically follows from the Court's rulings in Trahan and Thompson, so why blog about it?

Because every small step matters. In State v. Bernard, the Minnesota Supreme Court deliberately took no position on the application of its novel interpretation of the search-incident-to-arrest exception to blood and urine tests.

[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.

The Court of Appeals' decision in Thach takes a position on the issue.

Because the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach had a fundamental right to refuse to submit to both chemical tests.

Even this small step is a step in the right direction.

What can we expect next from Minnesota appellate courts? I'd like to see the elimination of the "as applied" modifier in DWI test refusal cases. These constitutional principles apply to all warrantless blood and urine tests in the implied consent context. The test refusal statute is unconstitutional on its face.