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Search-Incident-to-Arrest Exception for Warrantless Chemical Testing

Since the US Supreme Court issued its opinion in the case Missouri v. McNeely in 2013, there has been discussion about how its application will affect states’ implied consent laws. The Fourth Amendment protects us against unreasonable searches and seizures and a breath test or a blood test is considered a search. Warrantless searches are generally unreasonable, but there are some exceptions to the requirement of a warrant to conduct a search. One such exception is the existence of exigent circumstances. Over the years, some have argued that exigent circumstances exist in all dwi cases because the natural metabolization of alcohol in the blood stream is a per se exigency.

In McNeely, the U.S. Supreme Court put an end to this reasoning and held that a warrantless blood draw “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” Instead, to determine whether exigent circumstances exist so as to permit a warrantless blood draw, a totality of the circumstances must be considered on a case-by-case basis.

In the aftermath of McNeely, the supreme courts of both Nevada and Idaho held that the implied consent laws in those states were unconstitutional. Those courts noted that the US Supreme Court in McNeely seemed to approve of implied consent statutes which punished a person for withdrawing his implied consent. The implied consent statutes in both Nevada and Idaho, however, did not permit a person to withdraw his implied consent.

North Carolina’s implied consent law is found in G.S. 20-16.2 which states that people who drive on North Carolina roads give their consent to submit to chemical analysis if they are charged with an implied-consent offense, such as DWI. The statute also gives a police officer the authority to conduct a chemical analysis of person who he has reasonable ground to believe committed an implied-consent offense. However, the North Carolina implied consent law is different from those in Nevada and Idaho in that it allows a person charged with an implied-consent offense to refuse to submit to chemical testing. The refusal to submit to chemical testing will typically result in an automatic one-year revocation of that person’s driver’s license, but the statute explicitly states that “[u]nder the implied-consent law, you can refuse any test.”

The North Carolina Supreme Court has not examined the constitutionality of North Carolina’s implied consent law. The North Carolina Court of Appeals cases that have dealt with warrantless blood draws since McNeely have applied McNeely by looking at the totality of the circumstances when determining whether exigent circumstances exist.

Today, the Minnesota Supreme Court issued an opinion which upheld the constitutionality of its implied consent statute. The Minnesota statute makes it a crime to refuse to submit to chemical testing when an officer has probable cause to believe the person was driving while impaired. This crime is punished as if the person was found guilty of DWI. In addition, the implied consent statute provides that the license of a person who refuses chemical testing is revoked for a one-year period.

Today’s case arose out of events occurring in 2012. When William Bernard was arrested for DWI in Minnesota, he refused to take a chemical test. As required by Minnesota law, the officer informed Bernard that “Minnesota law required him to take a chemical test, that refusal to take a test was a crime, and that he had a right to consult with an attorney so long as there was not an unreasonable delay in the administration of the test.” Bernard still refused and he was charged with two counts of first-degree test refusal.

At trial, Bernard argued that the test refusal statute was unconstitutional because it violated his due process in making it a crime to refuse a warrantless, unreasonable search. The trial court ruled that the statute was not unconstitutional but then concluded that the officer needed a warrant to search Bernard and therefore dismissed the charges. The court of appeals reversed the trial court and held that Bernard’s due process rights were not violated by the test refusal prosecution because the officer had probable cause and could have obtained a warrant for the search.

The Minnesota Supreme Court disagreed with the reasoning of both lower courts. Instead of dealing with McNeely and the exigent circumstances exception to the requirement of a warrant, the court applied the exception to the requirement of a warrant which allows an officer to conduct a search incident to an arrest, stating that “a warrantless breath test does not violate the Fourth Amendment because it falls under the search-incident-to-a-valid-arrest exception.”

The court reasoned that McNeely did not preclude such a conclusion because the government in McNeely never raised the argument that the search-incident-to-arrest exception applied. The government only argued the exigent circumstances exception in its brief. The Court in McNeely mentioned the search-incident-to-arrest exception, but only to contrast it with the exigent circumstances exception and to note that the search-incident-to-arrest exception is categorically reasonable while the exigent circumstances exception requires a case-by-case examination. Therefore, “the warrantless search of Bernard’s breath would have been reasonable as a search incident to his valid arrest” provided that the officer had probable cause to arrest Bernard for DWI, which he did.

Two justices on the Minnesota Supreme Court dissented. They reasoned that there are limits on the search-incident-to-arrest doctrine and “it does not support the invasive search at issue in this case.” The search-incident-to-arrest exception permits an officer to frisk a person for weapons, and also “may extend to the preservation of evidence of the particular crime for which the arrest was made.” However, the dissent argued that while the language of the US Supreme Court stated that an officer could conduct a “full search of the person,” the actual search permitted “involved only a pat down and an examination of the contents of [the defendant’s] pockets, not an invasive search to retrieve biological material from within his body.”

The dissent went on to reason that last year’s US Supreme Court case which refused to extend the search-incident-to-arrest exception to the search of digital content on a cell phone indicated further limits on this exception and that “the only logical conclusion is that the removal of breath (or blood or urine) from the body to discover an arrestee’s blood alcohol level is not part of a search incident to arrest.”

The dissent concluded that the only reason to allow an officer to conduct a warrantless breath test is to preserve the evidence of blood alcohol content. However, in McNeely, the Court held that the natural dissipation of alcohol is not a per se exigency. The dissent noted that the McNeely Court explained that blood alcohol testing

is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “ ‘now-or-never’ ” situation. In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner.

The dissent reasoned that because McNeely requires officers to obtain a warrant for chemical testing if they are able to, it is unlikely that the Court would allow warrantless chemical testing under some other exception in the future. The dissent opinion concluded by stating that Minnesota’s test refusal statute was unconstitutional as applied to Bernard, but that it could be constitutionally applied in cases where it is unreasonable for an officer to obtain a warrant.

It will be interesting to see if any other states join Minnesota in applying the search-incident-to-arrest exception to warrantless chemical testing in DWI cases.

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