Trahan Update - Beating the Bernard Boomerang

Posted On December 16, 2015

Apparently, the State of Minnesota still has a bone to pick with the Constitution. The State filed, and was granted, a petition for further review of the Minnesota Court of Appeals' reversal of its own earlier decision in State v. Trahan.

(The current Trahan ruling prohibits the State from charging drivers with a crime for refusing a warrantless blood test. In other words, police need a warrant to draw blood â?? that's what we've been arguing all along.)

On Monday, after last Friday's decision by SCOTUS to grant review in State v. Bernard, the State of Minnesota requested a stay in the State v. Trahan case, pending the United States Supreme Court's ruling in Bernard.

The State sees the writing on the wall â?? Bernard is gonna boomerang back on the Minnesota Supreme Court and it ain't gonna be pretty.(This is all speculation, of course. But we have been right about Bernard so far.)

With lightning speed (24 hours) the Minnesota Supreme Court denied the State's motion to stay the Trahan proceedings, but granted the State's motion for a 15-day extension to submit its brief (the State's brief is now due on January 11, 2016).

Why wouldn't the Court stay Trahan in order to benefit from the guidance provided by SCOTUS in its upcoming Bernard opinion? Two words: saving face.

(Important Note: Justices Stras and Page are in the clear; they got it right the first time in their potent and principled dissent in Bernard.)

By affirming the Court of Appeals' recent Trahan decision (that warrantless blood tests are unconstitutional) before Bernard comes down from on high, the Minnesota Supreme Court hopes to rehabilitate its reputation for constitutional fidelity. The Bernard majority's creative application of the search-incident-to-arrest exception was far-fetched but semi-plausible. Overruling Trahan, by finding warrantless blood testing constitutional under Minnesota's existing implied consent scheme, would be blatant constitutional disobedience.

I'm still pondering what remedy all the drivers convicted of the unconstitutional crime of test refusal should pursue....