Might Bernard Have a Silver Lining?

Posted On June 17, 2015

Every cloud has a silver lining, they say.

Bernard is a heck of a cloud, but we may have caught a glint of silver in a district court opinion this week.

It appears that Bernard's silver lining may be a return to the universal voluntariness of consent analysis, and the end of the DWI consent analysis double standard. (Follow these links to conduct your own comparison of non-DWI consent analysis and DWI consent analysis.)

In a district court order filed on Monday, the court ultimately used Bernard to validate the warrantless breath test, but the court found no voluntary consent:

The consent exception is not applicable in this case. Although Defendant ultimately submitted to the test, he made clear that he was not doing so voluntarily, as he believed his constitutional rights were being violated. As such, the Court must consider whether another exception to the warrant requirement applies.

Just like that.

Did we mention that Bernard filed his Petition for Certiorari with the U.S. Supreme Court on Monday? Bernard may go down as the case that restored meaningful consent. Silver lining indeed!