WASHINGTON – Eight Supreme Court justices on Wednesday heard Dakota County’s argument that police officers should be able to criminally punish someone for refusing to consent to a blood, breath or urine test in a roadside stop, testing the constitutionality of a law upheld by the Minnesota Supreme Court.
The court heard from Kathryn Keena, an assistant Dakota County attorney from Hastings and Charles Rothfeld, a D.C.-based attorney who represented William Bernard, of Eagan, and one other North Dakota petitioner named Danny Birchfield.
In two separate incidents both Birchfield and Bernard were asked by police to submit to a blood test. Bernard was charged with two felony counts of test refusal after he said no to a breath test.
Rothfeld argued that Minnesota’s existing law, which criminalizes saying no to a sobriety test, is at fundamental odds with the constitution’s Fourth Amendment protections against unreasonable search and seizure without a warrant.
In more than 60 minutes of back and forth, though, the justices appeared skeptical.
They made sharp distinctions between the invasiveness of a breath test vs. a blood test and questioned whether driving a car waived certain constitutional protections by default to protect others — similar to going through a metal detector in a government building and permitting an officer to pat you down if there was suspicion you were carrying a weapon.
“On this basis … where is the right to drive in the constitution?” Chief Justice John Roberts asked Rothfeld.
Justice Stephen Breyer pushed Rothfeld on the actual invasiveness of a breath test, arguing that people exhale CO2 that is going out in the atmosphere anyway. He asked what was wrong with taking a breath test when it could save “lots of lives” if it dissuaded some people from drunken driving.
Rothfeld called a breath test “a significant intrusion on personal liberty” — a statement interrupted by Justice Elena Kagan, who said, “this is about as uninvasive as a test can be!”
The mood in the room was light and at several moments the justices barking back and forth at attorneys for both the states and petitioners elicited roars of laughter.
The cases heard Wednesday have massive implications nationwide in how states treat so-called implied consent laws. By the Supreme Court accepting the cases out of Minnesota and North Dakota, it appears the justices want to clear up the Fourth Amendment argument, which keeps bubbling up in lower courts. Only 13 states nationwide make it a punishable stand-alone crime to refuse a chemical test.
Last year, more than 100 Minnesota drivers had at least 10 driving while intoxicated convictions and almost 1,500 drivers had six or more DWI convictions, said the Minnesota Department of Public Safety.
A decision is expected in the next two months.
Justice Sonia Sotomayor pressed both the North Dakota and Minnesota attorneys on the ease of obtaining a warrant every single time they wanted to do a breath or blood test — particularly if most tests, even breath tests, are conducted in police stations.
Keena responded that it is a fundamentally high burden — particularly for rural counties — to require a warrant and a blood draw in every single case of drunken driving.
“Why bother?” said Keena, noting in a lot of jurisdictions there is only one officer on duty at a time.
Sotomayor told Keena that Minnesota was asking the Supreme Court to waive a constitutional protection just to make it easy for states and that’s not the high court’s role.
“It’s as if you want to create an exception to the Fourth Amendment … in a drastic way,” she said.
Some attorneys estimate that authorities administer 20,000 breath tests each year in Minnesota.
In a lighter moment right afterward, Breyer quipped to Keena, “Justice Sotomayor is assuming you’re going to lose and she would like your reaction!”
The courtroom laughed and Keena sat down.
Allison Sherry • 651-393-9550