                               STATE OF MINNESOTA

                                IN SUPREME COURT

                                      A13-1245

Court of Appeals                                                           Gildea, C.J.
                                                         Dissenting, Page and Stras, JJ.

State of Minnesota,

                      Respondent,

vs.                                                           Filed: February 11, 2015
                                                             Office of Appellate Courts
William Robert Bernard, Jr.,

                      Appellant.
                              ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Tori K. Stewart, Assistant County
Attorney, Hastings, Minnesota, for respondent.

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota; and

Steven T. Grimshaw, Minneapolis, Minnesota, for appellant.

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota, for amicus curiae Minnesota Society for Criminal Justice.

Teresa J. Nelson, American Civil Liberties Union of Minnesota, Saint Paul, Minnesota;
and

Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota; and

Nicole Moen, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for amicus curiae
American Civil Liberties Union of Minnesota.

William A. Lemons, Minnesota County Attorneys Association, Saint Paul, Minnesota,
for amicus curiae Minnesota County of Attorneys Association.
                             ________________________


                                          1
                                     SYLLABUS

       1.     Because a warrantless search of appellant’s breath would have been

constitutional as a search incident to a valid arrest, charging appellant with violating

Minn. Stat. § 169A.20, subd. 2 (2014), for refusing to take a breathalyzer in this

circumstance does not implicate a fundamental right.

       2.     Because Minn. Stat. § 169A.20, subd. 2, is a reasonable means to a

permissive object, it does not violate appellant’s right to due process under the United

States or Minnesota Constitutions.

       Affirmed.

                                       OPINION

GILDEA, Chief Justice.

       Minnesota law makes it a crime for a driver to refuse a request to take a chemical

test to detect the presence of alcohol if certain conditions are met, including that the

driver has been validly arrested for driving while impaired. Minn. Stat. § 169A.20,

subd. 2 (2014). The question presented in this case is whether Minn. Stat. § 169A.20,

subd. 2 (“test refusal statute”), violates appellant William Robert Bernard’s right to due

process under the United States or Minnesota Constitutions by criminalizing his refusal to

consent to an unconstitutional search. The district court held the test refusal statute was

unconstitutional as applied to Bernard, but the court of appeals reversed. Because we

conclude that the breath test the police asked Bernard to take would have been

constitutional as a search incident to a valid arrest, and as a result, charging Bernard with




                                             2
criminal test refusal does not implicate a fundamental right, and that the test refusal

statute is a reasonable means to a permissive object, we affirm.

       This case arises from a report that police received on August 5, 2012, that three

intoxicated men were attempting to get a boat out of the water at a boat launch in South

Saint Paul. When police arrived at the boat launch, a witness told the officers that the

men’s truck became stuck in the river while they were trying to pull their boat out of the

water. The witness also said that the driver of the truck was in his underwear. The

officers approached the three men and saw that the truck’s axle was hanging over

the edge of the pavement. One of the men, appellant William Robert Bernard, was in

his underwear. The officers could smell a strong odor of alcohol coming from the group.

Bernard admitted to police that he had been drinking, but he and the other men denied

driving the truck.    Several additional witnesses identified Bernard as the driver and

described him stumbling from the boat to the truck. As the officers questioned Bernard,

they noted that his breath smelled of alcohol, he had bloodshot, watery eyes, and he

was holding the keys to the truck. Bernard refused to perform field sobriety tests.

       The officers arrested Bernard on suspicion of driving while impaired (“DWI”) and

took him to the South Saint Paul police station.        The officers read Bernard the

Minnesota Implied Consent Advisory as required by Minn. Stat. § 169A.51, subd. 2

(2014). Specifically, police advised 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. Police also gave Bernard an opportunity to contact an attorney. Bernard called


                                             3
his mother instead. After the call to his mother, Bernard told the officers he did not

need any more time and refused to take a breath test.

       The State charged Bernard with two counts of first-degree test refusal, Minn. Stat.

§§ 169A.20, subd. 2, 169A.24 (2014). 1 Bernard filed a motion to dismiss, arguing that

the test refusal statute violated due process because the statute makes it a crime to refuse

an unreasonable, warrantless search of a driver’s breath. The district court ruled that the

test refusal statute was not unconstitutional on its face but dismissed the charges after

concluding that the police lacked a lawful basis to search Bernard without a warrant. The

court of appeals reversed, holding that prosecuting Bernard for refusal to take a breath

test did not violate his due process rights because the facts of the case established that

the officers had probable cause and could have secured a warrant to search Bernard’s

breath. We granted review.

                                             I.

       The test refusal statute, Minn. Stat. § 169A.20, subd. 2, makes it a crime to refuse

a chemical test administered to detect the presence of alcohol in certain circumstances.

Id. (“It is a crime for any person to refuse to submit to a chemical test of the person’s

blood, breath, or urine under section 169A.51 (chemical tests for intoxication) or

169A.52 (test refusal or failure; revocation of license).”). These circumstances include


1
       A person is guilty of first-degree driving while impaired or criminal test refusal if
that person “commits the violation within ten years of the first of three or more qualified
prior impaired driving incidents.” Minn. Stat. § 169A.24, subd. 1(1). A “qualified prior
impaired driving incident” includes prior impaired driving convictions. Minn. Stat.
§ 169A.03, subd. 22 (2014). Bernard has four impaired driving convictions since 2006.


                                             4
when an officer has probable cause to believe the person was driving, operating, or in

physical control of a motor vehicle while under the influence of alcohol and the police

have read the person the implied-consent advisory.           See Minn. Stat. § 169A.51,

subds. 1-2.

       Bernard argues that Minnesota’s test refusal statute, as applied to him, violates his

right to substantive due process because it criminalizes his Fourth Amendment right to

refuse an unconstitutional, warrantless search. 2 The Fourth Amendment protects “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” 3 U.S. Const. amend. IV. The “ultimate measure”

of a permissible government search under the Fourth Amendment is reasonableness.

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Because Bernard bases

2
       Bernard’s brief states that “the district court should have found the statute
unconstitutional on its face.” But Bernard makes no argument in his brief explaining
how the statute is unconstitutional in all applications. United States v. Salerno, 481 U.S.
739, 745 (1987) (stating that a facial challenge is “the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under
which the Act would be valid”). Instead, Bernard’s brief is devoted to arguing that
Minnesota’s test refusal law is unconstitutional as applied to him in this case. We
therefore treat Bernard’s appeal as an as-applied challenge. See Melina v. Chaplin,
327 N.W.2d 19, 20 (Minn. 1982) (stating that an issue “not argued in the briefs” is
waived). In addition, counsel for Bernard seemed to make a broader argument at the
hearing on this matter, asserting that the statute is unconstitutional on its face because
there is not a categorical exception to make all warrantless breath tests under the statute
constitutional. We will not consider this argument because Bernard did not raise it in his
brief. State v. Morrow, 834 N.W.2d 715, 724 n.4 (Minn. 2013) (stating that an issue
argued at oral argument, but not raised in the briefs is waived).
3
       Bernard also references the Minnesota Constitution’s prohibition against
unreasonable searches and seizures. See Minn. Const. art. I, § 10. Bernard, however, is
not asking us to extend broader search and seizure protection under the Minnesota
Constitution than what the Fourth Amendment affords.


                                             5
his due process argument on a Fourth Amendment violation, we turn first to the question

of whether a warrantless search of Bernard’s breath would have been constitutional under

the Fourth Amendment.

                                            A.

        The court of appeals held that the criminal charges against Bernard for refusing

the breath test were constitutional under the Fourth Amendment because the officer had

probable cause to believe that Bernard was driving under the influence and the officer

could have sought and received a warrant based on that evidence. State v. Bernard,

844 N.W.2d 41, 47 (Minn. App. 2014). The court did not find an exception to the

warrant requirement for the search of Bernard’s breath.        Id. at 45–46.   Instead, it

concluded that probable cause sufficient to support a warrant was enough to support the

criminal test-refusal charge. Id.

        The court of appeals’ analysis is contrary to basic principles of Fourth Amendment

law. A warrantless search is generally unreasonable, unless it falls into one of the

recognized exceptions to the warrant requirement. State v. Flowers, 734 N.W.2d 239,

248 (Minn. 2007). On several occasions, the U.S. Supreme Court has explicitly rejected

an exception to the warrant requirement based upon probable cause alone. See, e.g., Katz

v. United States, 389 U.S. 347, 356–57 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964). We

have also recognized that there is no probable cause exception to the warrant

requirement. See State v. Ortega, 770 N.W.2d 145, 149 n.2 (Minn. 2009). Consistent

with this precedent, we refuse to embrace the rule the court of appeals applied in this

case.


                                            6
       Although the court of appeals’ reasoning does not provide a basis for a

constitutional search, the State advances several other theories for why a search of

Bernard’s breath would have been constitutional. One such argument is that police could

have conducted a warrantless search of Bernard’s breath as a search incident to a valid

arrest. Bernard contends that because there is nothing he can do to destroy the evidence

of alcohol concentration in his body, the search-incident-to-arrest exception does not

apply to a search of his breath under Arizona v. Gant, 556 U.S. 332 (2009), and Missouri

v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013).

       A search incident to a lawful arrest is a well-recognized exception to the warrant

requirement under the Fourth Amendment. Gant, 556 U.S. at 338; see also Weeks v.

United States, 232 U.S. 383, 392 (1914) (explaining that the right “to search the person of

the accused when legally arrested to discover and seize the fruits or evidences of crime”

has been “uniformly maintained” in many cases “under English and American law”),

overruled on other grounds by Elkins v. United States, 364 U.S. 206 (1960). Under this

exception, the police are authorized to conduct a “full search of the person” who has been

lawfully arrested. United States v. Robinson, 414 U.S. 218, 235 (1973). Our court has

allowed searches of the body beyond a pat down of those police have lawfully arrested.

For example, we have held that the warrantless inspection of an arrested man’s penis was

a valid search incident to arrest, noting that someone “lawfully subjected to a custodial

arrest retains no significant Fourth Amendment interest in the privacy of his person.”

State v. Riley, 303 Minn. 251, 254, 226 N.W.2d 907, 909 (1975). We have also upheld

the taking of fingerprints and photographs of someone who has been arrested. State v.


                                            7
Bonner, 275 Minn. 280, 287, 146 N.W.2d 770, 775 (1966); see also State v. Emerson,

266 Minn. 217, 221, 123 N.W.2d 382, 385 (1963) (noting that subjecting an arrested man

to photographs, X-rays, and a medical examination did not violate his due process rights).

       Taking a sample of an arrestee’s breath is not materially different from the

warrantless searches upheld in these cases. 4 Based on this authority, we conclude that a

warrantless breath test of Bernard would not have violated the Fourth Amendment

because it is a search incident to Bernard’s valid arrest.

       Our conclusion that a warrantless breath test does not violate the Fourth

Amendment because it falls under the search-incident-to-a-valid-arrest exception is

consistent with decisions from other courts. See, e.g., United States v. Reid, 929 F.2d

990, 994 (4th Cir. 1991) (holding that breathalyzer tests were reasonable searches under

the Fourth Amendment because they were searches incident to lawful arrests); Burnett v.

Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986) (“It is clear then that the

breathalyzer examination in question is an appropriate and reasonable search incident to

4
        The dissent argues that our holding “fundamentally departs from longstanding
Fourth Amendment principles.” A search of an arrestee’s breath, however, is not a
departure from search-incident-to-arrest exception case law. Courts have upheld a
variety of searches that included the removal of biological material and searches within
the arrestee’s body as valid searches incident to arrest. See United States v. D’Amico,
408 F.2d 331, 332-33 (2d Cir. 1969) (upholding the warrantless seizure of a few strands
of the arrestee’s hair); Espinoza v. United States, 278 F.2d 802, 804 (5th Cir. 1960)
(upholding a forcible search of an arrestee’s mouth for narcotics). Courts have also
upheld chemical testing conducted on parts of a defendant’s body as a search incident to
arrest. See United States v. Johnson, 445 F.3d 793, 795–96 (5th Cir. 2006)
(upholding gunpowder residue testing done on defendant’s hands as a search incident to
arrest); Jones v. State, 74 A.3d 802, 812-13 (Md. Ct. Spec. App. 2013) (same and citing
other cases so holding); State v. Riley, 500 S.E.2d 524, 533 (W. Va. 1997) (same);
Sen v. State, 301 P.3d 106, 117–18 (Wyo. 2013) (same).


                                              8
arrest which appellants have no constitutional right to refuse.”); Byrd v. Clark, 783 F.2d

1002, 1005 (11th Cir. 1986) (holding that “officers would have been justified in

conducting a [breath] search” under the search-incident-to-arrest exception); Wing v.

State, 268 P.3d 1105, 1110 (Alaska Ct. App. 2012) (holding that a breath test was a valid

search incident to arrest); State v. Dowdy, 332 S.W.3d 868, 870 (Mo. Ct. App. 2011)

(same); State v. Hill, No. 2008-CA-0011, 2009 WL 1485026, at *5 (Ohio Ct. App.

May 22, 2009) (same); Commonwealth, Dep’t of Transp. v. McFarren, 525 A.2d 1185,

1188 (Pa. 1987) (same). 5 Indeed, our research has not revealed a single case anywhere in

the country that holds that a warrantless breath test is not permissible under the

search-incident-to-a-valid-arrest exception. 6


5
        The dissent claims that our conclusion is unprecedented because our holding
authorizes the collection of biological material from inside the defendant’s body as a
lawful search incident to arrest. The dissent is mistaken. As the cases we cited above
indicate, courts for nearly 30 years have found a breath test is a lawful search incident to
arrest. The dissent does not, and indeed cannot, cite any Supreme Court case holding that
a search incident to arrest does not apply to biological material.
6
       The dissent is unable to find any contrary authority. Other courts, including the
Texas Court of Criminal Appeals in the case cited by the dissent, have held that a blood
test cannot be justified by the search-incident-to-arrest exception. See, e.g., State v.
Baker, 502 A.2d 489, 492–93 (Me. 1985) (rejecting the search-incident-to-arrest
exception as justifying a warrantless blood draw, but upholding the test under the exigent
circumstances exception); State v. Stern, 846 A.2d 64, 68 (N.H. 2004) (suggesting that
exigent circumstances is the only exception that can justify a warrantless blood draw);
State v. Welch, 342 S.E.2d 789, 794 (N.C. 1986) (same); State v. Villarreal, ___ S.W.3d
___, 2014 WL 6734178, at *18 (Tex. Crim. App. Nov. 26, 2014) (holding that the search-
incident-to-arrest exception cannot justify a warrantless blood draw). Although not in the
context of driving while impaired, we have also determined that a warrantless blood
sample search was unconstitutional. State v. Campbell, 281 Minn. 1, 10, 161 N.W.2d 47,
54 (1968) (“[A]bsent unusual circumstances, an intrusion upon the body of a citizen
should properly be made only by authority of a warrant issued by a magistrate, for it is a
                                                        (Footnote continued on next page.)

                                                 9
                                              B.

       Bernard and the dissent argue, however, that the Supreme Court has been

retracting the scope of searches that are constitutional under the search-incident-to-arrest

exception. To support this argument, Bernard relies on Arizona v. Gant, 556 U.S. 332.

Gant, however, did not address a search of a person; Gant involved the search of the area

from which the defendant was arrested, specifically, the defendant’s automobile.

556 U.S. at 336. As Bernard notes, the Court discussed that the search-incident-to-a-

valid-arrest exception derives from concerns over officer safety and a desire to preserve

evidence. Id. at 338. Because the police had secured the defendant in the back of a

squad car, these concerns were nonexistent in Gant and the Court held that the

warrantless search of the defendant’s automobile did not fall under the search-incident-

to-arrest exception. Id. at 351.

       Similar to Gant, Bernard argues that the State in this case cannot show that a

search of his breath was related to officer safety or concerns that he would destroy




(Footnote continued from previous page.)
search and seizure within the limitations of the Fourth Amendment.”). In this case,
however, the officers did not ask Bernard to submit to a blood test. Therefore, the
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 differences between a blood test and a breath test are
material, and not the least of those differences is the less-invasive nature of breath testing.
See Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 626 (1989) (stating that, unlike
blood tests, breath tests do not “implicate[] significant privacy concerns”).




                                              10
evidence. That may be true, 7 but it does not compel the conclusion that the search-

incident-to-arrest exception does not apply here. This is so because there are two distinct

types of searches that fall within the exception. Robinson, 414 U.S. at 224. First, police

may conduct a search “of the person of an arrestee by virtue of the lawful arrest.” Id.

Second, a search may be made of the area within the immediate control of the arrestee.

Id. It is the first type of search—the search of the arrestee’s person—that is relevant here.

       There is no question that the Court has required either a concern for officer safety

or a concern over the preservation of evidence to support the constitutionality of a

warrantless search of the area where the defendant was arrested or a search of items near

the defendant. But the Court has not applied these concerns as a limitation on the

warrantless search of the body of a person validly arrested. A brief review of the Court’s

cases illustrates this distinction.

       In Chimel v. California, the U.S. Supreme Court held that following an arrest, a

police officer may search the person of the arrestee and the area within his or her

immediate control to remove weapons and to seize evidence. 395 U.S. 752, 762–63

(1969). The Court explained that the search promoted officer safety and prevented the

destruction or concealment of evidence. Id. at 763. A search of the arrestee’s entire

home, however, was not justified as a search incident to arrest. Id.

       A few years later, in United States v. Robinson, the Court clarified the justification

for the search of a person under the search-incident-to-arrest exception. In Robinson, a

7
       The State makes no argument in this case that the breath test was necessary to
protect the safety of the officers or jailers from an intoxicated arrestee.


                                             11
police officer arrested the defendant for driving with a revoked license and subsequently

performed a patdown search. 414 U.S. at 220-23. The officer pulled an unidentified

object from the defendant’s pocket and discovered that it was a cigarette package. Id. at

223. Upon opening the package, the officer found 14 capsules of heroin. Id. The Court

held that the police lawfully discovered the heroin as part of a search incident to arrest.

Id. at 236.

       Through its holding, the U.S. Supreme Court overruled the analysis from the

United States Court of Appeals for the District of Columbia Circuit. Id. at 237. The

court of appeals concluded that the search-incident-to-arrest exception did not apply.

United States v. Robinson, 471 F.2d 1082, 1108 (D.C. Cir. 1972). The exception did not

apply because the police did not have reasonable grounds to believe that the defendant,

who police arrested for driving after license revocation, would have any additional

evidence of the crime on his person, and because there was no evidence that police were

concerned for their safety when they searched the defendant. Id. at 1094, 1098 (D.C. Cir.

1972). The Supreme Court termed these limitations, within the context of a search of the

person of a validly arrested defendant, as “novel” and rejected them. Robinson, 441 U.S.

at 229. Rather than constricted by the limitations the appellate court had adopted, the

Supreme Court referred to the police’s “authority” to search an arrested person as

“unqualified.” Id. The Court held that “in the case of a lawful custodial arrest a full

search of the person is not only an exception to the warrant requirement of the Fourth

Amendment, but is also a ‘reasonable’ search under that Amendment.”             Id. at 235

(emphasis added). In other words, in Robinson, the Court characterized a warrantless


                                            12
search of a person as categorically reasonable under the Fourth Amendment as a search

incident to that person’s valid arrest. See McNeely, ___ U.S. at ___, 133 S. Ct. at 1559

n.3 (citing Robinson).

       Subsequent cases have addressed and limited the second type of search under the

search-incident-to-arrest exception, a search of the area or things within the immediate

control of the arrestee, but they have not narrowed the exception with respect to a search

of the arrestee’s body. See Gant, 556 U.S. at 351 (holding that the “[p]olice may search a

vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching

distance of the passenger compartment at the time of the search”); United States v.

Chadwick, 433 U.S. 1, 14-15 (1977) (holding that a locked footlocker seized at the time

of a defendant’s arrest could not be justified as a search of the area within the arrestee’s

immediate control “if the ‘search is remote in time or place from the arrest’ ” or if the

police have exclusive control of the property and “there is no longer any danger that the

arrestee might gain access to the property” (quoting Preston v. United States, 376 U.S.

364, 367 (1964)), abrogated on other grounds by California v. Acevedo, 500 U.S. 565

(1991).

       Just last term, in Riley v. California, the Court addressed whether police could

search a “particular category of effects”—digital data found within a cell phone seized

during an arrest—without a warrant under the search-incident-to-arrest exception.

___ U.S. ___, 134 S. Ct. 2473, 2485 (2014). In concluding that the police could not

search data on the cell phone as a search incident to arrest, the Court reaffirmed

“Robinson’s admonition that searches of a person incident to arrest . . . are reasonable


                                            13
regardless of ‘the probability in a particular arrest situation that weapons or evidence

would in fact be found.’ ” Id. at ___, 134 S. Ct. at 2485 (quoting Robinson, 414 U.S. at

235). In a custodial arrest situation, those concerns are always present and do not need to

be specifically identified or proven to justify a search. Id. at ___, 134 S. Ct. at 2484-85.

Therefore, far from overruling or narrowing Robinson, the Court recognized again

Robinson’s “categorical rule,” which allows a search of the person of an arrestee justified

only by the custodial arrest itself, and simply chose not to extend that categorical

exception to digital data found within a cellphone. Id. at ___, 134 S. Ct. at 2484.

       The dissent reads Riley much differently than we do. It claims the Supreme Court

in Riley “confirmed that when it refers to a search of a person incident to arrest, as in

Robinson, it is talking about personal property—that is, evidence—found on a person.”

As support, the dissent cites to Riley’s discussion of Robinson, 414 U.S. at 235, and

Chadwick, 433 U.S. at 15. The dissent misreads Riley. 8


8
       The dissent’s interpretation of Riley makes no logical sense. Even though the
Court in Riley reaffirmed Robinson’s holding that “searches of a person” are lawful as
part of a search incident to arrest without any additional showing by the government, see
Riley, __ U.S. at __, 134 S. Ct. at 2485, the dissent asserts that the phrase “searches of a
person” actually refers to personal property found on a person. We think that if the
Supreme Court intended the phrase “searches of a person” to exclude searching the actual
person, i.e., their body, and to only include searching personal property found on a
person, the Court would have clearly said so. We are also hard pressed to understand
how the police can even search personal property found on a person without first
searching the actual person.

       The dissent also claims that because the Supreme Court in Riley did not extend its
holding from Robinson regarding the type of objects found on a person that may be
categorically searched incident to arrest to digital content found within a cell phone, “the
only logical conclusion is that the removal of breath (or blood or urine) from the body to
                                                         (Footnote continued on next page.)

                                            14
      In discussing these two cases in Riley, the Court explained that in Robinson, “the

Court did not draw a line between a search of Robinson’s person and a further

examination of the cigarette pack found during that search.” Riley, ___ U.S. at ___,

134 S. Ct. at 2484. The Court went on to explain that in Chadwick, it did make a

distinction between a search of the person and the personal property, a footlocker that

was in the exclusive control of law enforcement officers, found during that search. Id. at

___, 134 S. Ct. at 2484.       It “clarified that this exception [requiring no additional

justification for the search] was limited to ‘personal property . . . immediately associated


(Footnote continued from previous page.)
discover an arrestee’s blood alcohol level is not part of a search incident to arrest.” We
disagree. The search at issue in Riley was not a search of the defendant’s body, like the
search involved in this case, but a search of a physical object found on the defendant. In
addition, the search that occurs when a breath test is taken is clearly distinguishable from
the search of the contents of a person’s cell phone. In Riley, the Court emphasized that
even with the diminished expectation of privacy that comes with a custodial arrest, a
search of a cell phone would be intrusive. Riley, ___ U.S. at ___, 134 S. Ct. at 2485. The
Court noted that “[m]odern cell phones, as a category, implicate privacy concerns far
beyond those implicated by the search of a cigarette pack, a wallet, or a purse” because
they contain vast quantities of highly personal information about a person. Id. at ___,
134 S. Ct. at 2488-89. The same cannot be said for a breathalyzer test, which reveals
nothing more than the level of alcohol in the arrestee’s bloodstream. See Skinner, 489
U.S. at 625.

        Finally, our conclusion that Riley did not limit the full body search of an arrestee
authorized by Robinson is reinforced by other language in the opinion. The Court
reiterated later in Riley that “we do not overlook Robinson’s admonition that searches of
a person incident to arrest, ‘while based upon the need to disarm and to discover
evidence’ are reasonable regardless of ‘the probability in a particular arrest situation that
weapons or evidence would in fact be found.’ ” Riley, ___ U.S. at ___, 134 S. Ct. at 2485
(quoting Robinson, 414 U.S. at 235). There would have been no need for the court to
reaffirm its holding from Robinson regarding “searches of a person incident to arrest” if
Robinson only authorized the search of personal property found on an arrestee. Id. at
___, 134 S. Ct. at 2485.


                                             15
with the person of the arrestee.’ ” Id. at ___, 134 S. Ct. at 2484 (quoting Chadwick,

433 U.S. at 15). The dissent relies on this last sentence to support its interpretation of

Riley.

         When this quote is put in context, it is clear that the Court was not limiting the

categorical search of an arrestee’s body that may be performed as a search incident to

arrest. Instead, the Court was explaining that Chadwick had limited the type of property

that may be categorically searched as part of a search incident to arrest to property

immediately associated with the arrestee.         Moreover, because the searches being

challenged in both Riley and Chadwick were not searches of the arrestee’s body itself, it

is hard to see how those cases can be read to have placed restrictions on such a search.

         In short, we reject as unpersuasive both Bernard’s and the dissent’s arguments that

Gant and Riley require us to conclude that the search-incident-to-arrest exception does

not apply to the warrantless search of his breath.

         Bernard also argues that the search-incident-to-arrest exception cannot apply to a

breath test under Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013). The U.S.

Supreme Court in McNeely, however, addressed only the exigent-circumstances

exception to the warrant requirement. Id. at ___, 133 S. Ct. at 1556 (addressing whether

the “natural metabolization of alcohol in the bloodstream presents a per se exigency that

justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual

blood testing in all drunk-driving cases”). The government did not raise the search-




                                             16
incident-to-arrest exception in its argument to the Supreme Court. 9        See Brief for

Petitioner, Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013) (No. 11-1425). In

fact, McNeely only mentioned the search-incident-to-arrest exception by contrasting it

with the exigent-circumstances exception to the warrant requirement, noting that unlike

the exigent-circumstances exception, the search-incident-to-arrest exception is categorical

and does not require a case-by-case assessment of the circumstances. 10 McNeely, ___

U.S. at ___, 133 S. Ct. at 1559 n.3. Therefore, the Supreme Court’s decision in McNeely

does not foreclose our decision regarding the search-incident-to-arrest exception to the

warrant requirement.

       Based on our analysis above, the warrantless search of Bernard’s breath would

have been reasonable as a search incident to his valid arrest. The undisputed facts of this

case establish that the police had probable cause to arrest Bernard for DWI. Indeed,

9
      A group of state attorneys general did argue that the search in McNeely was
permissible under the search-incident-to-arrest exception. Brief for Delaware, et al. as
Amici Curiae Supporting Petitioner at 7-20, Missouri v. McNeely, ___ U.S. ___, 133 S.
Ct. 1552 (2013) (No. 11-1425). The U.S. Supreme Court, however, does not consider
arguments “not raised by the parties or passed on by the lower courts.” F.T.C. v. Phoebe
Putney Health Sys., Inc., ___ U.S. ___, 133 S. Ct. 1003, 1010 n.4 (2013).
10
        Specifically, the Supreme Court recognized that “searches of a person incident to a
lawful arrest” are part of a “limited class of traditional exceptions to the warrant
requirement that apply categorically and thus do not require an assessment of whether the
policy justifications underlying the exception . . . are implicated in a particular case.”
McNeely, ___ U.S. at ___, 133 S. Ct. at 1559 n.3. The dissent is therefore mistaken that
it “strains credulity to suppose” that the search-incident-to-arrest exception would apply
to a future warrantless breath test case because the exception “turns on the same rationale
regarding the preservation of evidence that the Supreme Court explicitly rejected in
McNeely.” The Supreme Court reaffirmed in McNeely that a search of a person incident
to arrest is categorically justified not by a specific rationale for the preservation of
evidence, but by a lawful arrest.


                                            17
Bernard does not dispute that the police validly arrested him before asking him to submit

to a breathalyzer test. The breath test was a search of Bernard’s person that would have

been no more intrusive than the myriad of other searches of the body that we and other

courts have upheld as searches incident to a valid arrest. See, e.g., Riley, 303 Minn. at

254, 226 N.W.2d at 909. We therefore conclude that a breath test is a search of the

arrestee’s person and is justified by virtue of the lawful arrest itself. As a result, we hold

that a warrantless breath test of Bernard would have been constitutional under the search-

incident-to-arrest exception to the Fourth Amendment’s warrant requirement. 11




11
       The dissent argues that our holding ignores the U.S. Supreme Court’s narrowing
of the search-incident-to-arrest exception. The Supreme Court, however, has not been
narrowing the search-incident-to-arrest exception as it applies to searches of the
arrestee’s person. Instead, the Court has been clarifying the exception’s application to a
search of the area or things within the arrestee’s immediate control. See Riley, ___ U.S.
at ___ , 134 S. Ct. at 2484-85 (holding that searching the data on a cell phone was not a
search incident to arrest, but recognizing a categorical exception justifying searches of an
arrestee’s person); Gant, 556 U.S. at 339 (discussing searches incident to arrest in the
context of a search of an automobile).

       Further, despite narrowing the scope of the exception in terms of searches other
than of the defendant’s body, the U.S. Supreme Court has not overruled Robinson, and
“only the Supreme Court may overrule one of its own decisions.” State v. Brist,
812 N.W.2d 51, 56 (Minn. 2012) (citing Thurston Motor Lines, Inc. v. Jordan K. Rand,
Ltd., 460 U.S. 533, 535 (1983)). The Supreme Court has stated, “If a precedent of this
Court has direct application in a case, yet appears to rest on reasons rejected in some
other line of decisions, [courts] should follow the case which directly controls . . . .”
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
Robinson’s discussion of searches of the person incident to arrest is on point in this case.
The Supreme Court has not overruled Robinson, and so we will follow it. Under
Robinson, a search of Bernard’s breath incident to his arrest is a permissible search by
virtue of his lawful arrest.


                                             18
                                            II.

       We turn next to Bernard’s substantive due process challenge to the test refusal

statute.   The due process clauses of the United States and Minnesota Constitutions

“prohibit ‘certain arbitrary, wrongful government actions, regardless of the fairness of the

procedures used to implement them.’ ” Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.

1999) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)); see also U.S. Const.

amends. V, XIV; Minn. Const. art. I, § 7. When assessing a due process challenge, the

analysis we apply depends on whether the statute implicates a fundamental right. Boutin,

591 N.W.2d at 716. Having decided that the search of Bernard’s breath would have been

constitutional, we find no fundamental right at issue here, as Bernard does not have a

fundamental right to refuse a constitutional search.       See Washington v. Glucksberg,

521 U.S. 702, 720-21 (1997) (stating that fundamental rights for purposes of substantive

due process are those rights and liberties “which are, objectively, deeply rooted in this

Nation’s history and tradition” and are “implicit in the concept of ordered liberty”

(citations omitted) (internal quotation marks omitted)).

       If a statute does not implicate a fundamental right, we assess its constitutionality

using rational basis review. See State v. Behl, 564 N.W.2d 560, 567 (Minn. 1997). To

survive a due process challenge using rational basis review, the statute must not be

“arbitrary or capricious.” Id. We will uphold the statute as long as it is “a reasonable

means to a permissive object.” Id. We review the constitutionality of statutes de novo.

State v. Henning, 666 N.W.2d 379, 382 (Minn. 2003).




                                            19
       The object of the Minnesota Impaired Driving Code, Minn. Stat. § 169A.01 et

seq., is public safety. We have recognized the “severe threat” that impaired drivers pose

to the public’s safety. Heddan v. Dirkswager, 336 N.W.2d 54, 62–63 (Minn. 1983).

Indeed, 30 percent of traffic deaths in Minnesota in 2013 were alcohol-related. Minn.

Dep’t of Pub. Safety, Minnesota Motor Vehicle Crash Facts 2013 39 (2014). And we

have said that “the state has a compelling interest in highway safety justifying efforts to

keep impaired drivers off the road.” Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410,

417 (Minn. 2007) (citing Heddan, 336 N.W.2d at 63). Securing effective chemical tests

to determine whether drivers suspected of being under the influence are in fact driving

while impaired is reasonably related to the government’s interest in keeping impaired

drivers off the road.

       Encouraging drivers to submit to such tests, through criminalizing their refusal,

furthers that interest. In fact, one study concludes that alcohol concentration test refusals

compromise the enforcement of drunk-driving laws. Ralph K. Jones & James L. Nichols,

Breath Test Refusals and Their Effect on DWI Prosecution 42 (2012) (concluding that

“[a]s statewide refusal rates increased, overall conviction rates . . . decreased”). And

another study finds that Minnesota’s test refusal statute has led to a lower refusal rate and

an increased conviction rate for alcohol-related offenses, including driving under the

influence and test refusal.    H.L. Ross, et al., Causes and Consequences of Implied

Consent Test Refusal, 11 Alcohol, Drugs and Driving 57, 71–72 (1995).

       In sum, it is rational to conclude that criminalizing the refusal to submit to a breath

test relates to the State’s ability to prosecute drunk drivers and keep Minnesota roads


                                             20
safe. We therefore hold that the test refusal statute is a reasonable means to a permissive

object and that it passes rational basis review.

       Affirmed.




                                             21
                                       DISSENT

PAGE, Justice, and STRAS, Justice (dissenting jointly).

       We respectfully dissent. The court apparently wishes that we lived in a world

without Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013), and one in which

there are no limits to the search-incident-to-arrest doctrine. But we do not live in such a

world. The Supreme Court of the United States has decided McNeely and, over the past

several decades, has limited searches incident to arrest. Even though the court’s opinion

strikes a confident tone, the truth of the matter is that its decision is borne of obstinance,

not law. The court today fundamentally departs from longstanding Fourth Amendment

principles, and nullifies the warrant requirement in nearly every drunk-driving case.

                                              I.

       As justices of a state supreme court, we are bound to follow decisions of the

Supreme Court of the United States on questions of federal law. U.S. Const. Art. VI.

Rather than carrying out its duty, the court selectively quotes from some Supreme Court

decisions and ignores others to reach a decision that is at odds with Supreme Court

precedent on the scope of searches incident to arrest.         Two erroneous assumptions

permeate the court’s analysis. First, the court assumes, without support, that biological

material may be taken from inside a person’s body as part of a search incident to arrest.

Second, the court assumes, again without support, that the rationales underlying the

search-incident-to-arrest exception—officer safety and preventing the destruction of

evidence, see Chimel v. California, 395 U.S. 752, 762-63 (1969)—do not apply to




                                            D-1
searches of a person. In the end, the court ultimately arrives at a decision that is as

notable for its disregard of Supreme Court precedent as it is for its defective logic.

                                             A.

       To start with the court’s first assumption, the Supreme Court has never implied,

much less stated, that the search-incident-to-arrest exception extends to the forcible

removal of substances from within a person’s body.

       The court relies almost exclusively on United States v. Robinson, 414 U.S. 218

(1973), a search-incident-to-arrest case that is not as expansive as the court claims. In

approving the warrantless breath test that Bernard refused in this case, the court seizes

upon Robinson’s statement that, “in the case of a lawful custodial arrest[,] a full search of

the person is not only an exception to the warrant requirement of the Fourth Amendment,

but is also a ‘reasonable’ search under that Amendment.” Id. at 235. The court then

insists, contrary to authority, that the Supreme Court has not subsequently “narrowed the

[search-incident-to-arrest] exception with respect to a search of the arrestee’s body.” The

court starts from the premise that the Supreme Court intended a “full search of the

person” to be so broadly defined as to include the compelled removal of biological

material from inside the body, and then effectively ignores everything the Supreme Court

has said since Robinson about searches incident to arrest.

       Although Robinson’s language is broad, it is not unlimited, and it does not support

the invasive search at issue in this case. In Robinson, the police arrested the defendant

for driving after his license had been revoked. 414 U.S. at 220-21. In accordance with

standard procedures, an officer searched Robinson and found a cigarette package that


                                             D-2
contained heroin in Robinson’s coat pocket. Id. at 221-23. At Robinson’s trial, the trial

court admitted the heroin into evidence, and Robinson was convicted, largely because of

the heroin found during the search incident to his arrest. Id. at 223. The Supreme Court

held that a search of a person incident to arrest is not limited to a protective frisk for

weapons, as in Terry v. Ohio, 392 U.S. 1 (1968), and may extend to the preservation of

evidence of the particular crime for which the arrest was made.             Id. at 234-35.

Ultimately, the Supreme Court concluded that it was the “lawful arrest” itself that

provided the authority to search, and that the search conducted in Robinson was

reasonable under the Fourth Amendment. Id. at 235.

        In the context of this case, Robinson is more notable for its facts than for what it

said.   Despite the Supreme Court’s broad language, the search in Robinson was

unremarkable.     The “full search of the person” involved only a pat down and an

examination of the contents of Robinson’s pockets, not an invasive search to retrieve

biological material from within his body. See id. at 222-23; see also Illinois v. Lafayette,

462 U.S. 640, 645 (1983) (stating that “the interests supporting a search incident to arrest

would hardly justify disrobing an arrestee on the street”).

        Any doubt about the bounds of Robinson vanished after Riley v. California, ___

U.S. ___, 134 S. Ct. 2473 (2014), when the Supreme Court confirmed that, when it refers

to a search of a person incident to arrest, as in Robinson, it is talking about personal

property—that is, evidence—found on a person. In Riley, a case involving the digital

content of cell phones, the Supreme Court reviewed the history of the search-incident-to-

arrest exception. Id. at ___, 134 S. Ct. at 2482-84. After discussing several cases, the


                                            D-3
Supreme Court turned its attention to Robinson. Id. at ___, 134 S. Ct. at 2483-84. It

explained that, four years after Robinson, it “[had] clarified that [the search-incident-to-

arrest] exception was limited to ‘personal property . . . immediately associated with the

person of the arrestee.’ ” Id. at ___, 134 S. Ct. at 2484 (quoting United States v.

Chadwick, 433 U.S. 1, 15 (1977) (emphasis added)); see also Robinson, 414 U.S. at 226

(an arresting officer may “search for and seize any evidence on the arrestee’s person”

(quoting Chimel v. California, 395 U.S. 752, 762-63 (1969)) (emphasis added)). The

Supreme Court repeated its cautionary note about the proper scope of a search incident to

arrest just four paragraphs later when it said that, “while Robinson’s categorical rule

strikes the appropriate balance in the context of physical objects, neither of its rationales

has much force with respect to digital content on cell phones.” Riley, ___ U.S. at ___,

134 S. Ct. at 2484 (emphasis added); see also id. at ___, 134 S. Ct. at 2489 (“A

conclusion that inspecting the contents of an arrestee’s pockets works no substantial

additional intrusion on privacy beyond the arrest itself may make sense as applied to

physical items, but any extension of that reasoning to digital data has to rest on its own

bottom.”). Given Riley’s clarification that Robinson applies only to physical evidence

found on a person’s body—and not digital content found on cell phones—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. 1


1
      One could point to the Supreme Court’s recent decision in Maryland v. King, ___
U.S. ___, 133 S. Ct. 1958 (2013), as support for the warrantless breath test at issue in this
case. After all, in King, the Supreme Court upheld a warrantless search by which jail
                                                       (Footnote continued on next page.)

                                              D-4
       The court nevertheless reads Robinson as authority for conducting any search of

an arrestee, even one that collects material from within a person’s body. In doing so, the

court fails to address two flaws in its approach. First, molecules of ethanol (C2H6O) in a

person’s blood are not “physical objects” in the same sense as a “crumpled up cigarette

package,” see Robinson, 414. U.S. at 223, coins, see Chimel, 395 U.S. at 754, or a bag of

cocaine, see Arizona v. Gant, 556 U.S. 332, 336 (2009). It seems obvious that, similar to

the digital content of a cell phone, alveolar “deep-lung” air “differ[s] in both a




(Footnote continued from previous page.)
officials used a buccal swab to collect DNA from an arrestee under a Maryland statute.
Id. at ___, 133 S. Ct. at 1980. The statute, the Maryland DNA Collection Act, required
officers to collect a DNA sample from arrestees charged with serious crimes, but
critically, the Maryland law did not subject the collection requirement to the discretion of
officers. Id. at ___, 133 S. Ct. at 1970. The Supreme Court sanctioned the warrantless
search in King as a routine booking procedure, not as a search incident to arrest. Id. at
___, 133 S. Ct. at 1971, 1977. King therefore does not permit a warrantless search, as
here, when officers have discretion to conduct the search based on individualized
suspicion and concerns about evidence preservation, rather than on an administrative
interest in identifying the arrestee.

       Likewise, Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989),
although at least involving a breath test, is a case that arose under a different branch of
Fourth Amendment doctrine. In Skinner, the Supreme Court upheld a warrantless breath
test for railroad employees who worked in a “regulated industry” and had effectively
“consent[ed] to significant restrictions in [their] freedom of movement where necessary
for [their] employment.” See id. at 624-25, 628. The triggering event for the breath test
conducted in Skinner was a “major train accident,” not an arrest, and its purpose was
safety, not prosecution. Id. at 609, 621, 622 n.6. Skinner was, in other words, a “special
needs” case, and like King, the Supreme Court recognized that it was departing from “the
usual warrant and probable-cause requirements” applicable to law enforcement. Id. at
620 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)). In this case, the State
has not identified a “special need” for the warrantless breath test it sought to administer
to Bernard.


                                            D-5
quantitative and a qualitative sense from other objects that might be kept on an arrestee’s

person.” See Riley, ___ U.S. at ___, 134 S. Ct. at 2489. 2

       Second, the court fails to acknowledge that a search incident to arrest is limited to

evidence found on an arrestee’s body. Typically, a person taking a breath test must insert

a tube into his or her mouth and then comply with the officer’s instructions to blow into

the tube at a specified rate until the breathalyzer has had sufficient time to analyze a

sample of deep-lung air. See, e.g., California v. Trombetta, 467 U.S. 479, 481 (1984)

(describing requirements for administering the Intoxilyzer).         Failure to produce an

“adequate . . . sample” is punishable by up to 7 years in prison.           See Minn. Stat.

§§ 169A.20, subds. 2-3, 169A.51-52 (2014). The court does not cite a single Supreme

Court case authorizing such a profound intrusion into a person’s bodily integrity during a

search incident to arrest. Cf. Skinner, 489 U.S. 616-17 (recognizing that testing deep-

lung breath, like conducting a blood test, raises “similar concerns about bodily

integrity”); King, ___ U.S. at ___, 133 S. Ct. at 1989 (Scalia, J., dissenting) (“I doubt that

the proud men who wrote the charter of our liberties would have been so eager to open

their mouths for royal inspection.”). The reason is that no such case exists.


2
       Even if breath can somehow be considered a “physical object” that is “personal
property,” any breath test that could have been performed in this case would still not
qualify as a search incident to arrest because it would have been “remote in time or place
from the arrest.” United States v. Chadwick, 433 U.S. 1, 15 (1977) (quoting Preston v.
United States, 376 U.S. 364, 367 (1964)), abrogated on other grounds by California v.
Acevedo, 500 U.S. 565 (1991). In fact, that is precisely what the Texas Court of Criminal
Appeals, the court of last resort for criminal matters in Texas, recently recognized in the
context of a blood draw. See State v. Villarreal, ___ S.W.3d ___, 2014 WL 6734178, at
*15 (Tex. Crim. App. Nov. 26, 2014) (quoting Chadwick, 433 U.S. at 15).


                                            D-6
       A warrantless search is unreasonable unless it falls within a specific exception to

the warrant requirement.     Riley, ___ U.S. at ___, 134 S. Ct. at 2482.         Instead of

acknowledging that its decision repudiates longstanding Fourth Amendment principles,

the court responds by saying that the Supreme Court has never explicitly forbidden the

particular type of warrantless search at issue in this case. Such reasoning, however, turns

the warrant requirement on its head, allowing it to serve as a presumption in favor of

warrantless searches rather than as a safeguard against them.

                                            B.

       The court’s second assumption is equally extreme: that the rationales for the

search-incident-to-arrest exception—officer safety and preventing the destruction of

evidence—do not apply to searches of a person. Again, the court’s assumption is in

conflict with Supreme Court precedent.

       In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court considered

whether an arrest of a person in his home permitted the police to search the entirety of the

arrestee’s three-bedroom home, including his attic and garage.        The Supreme Court

invalidated the search and identified the two rationales that support searches incident to

arrest: protecting the safety of officers and preventing the concealment and destruction

of evidence. Id. at 762-63. Those rationales allow an arresting officer, without a warrant,

to (1) “search the person arrested in order to remove any weapons,” (2) “search for and

seize any evidence on the arrestee’s person in order to prevent its concealment or

destruction,” and (3) search in “the area into which an arrestee might reach.”           Id.

(emphasis added); see also Riley, ___ U.S. at ___, 134 S. Ct. at 2483 (quoting Chimel,


                                            D-7
395 U.S. at 762-63). The court now contends, however, that neither rationale applies to a

search for evidence on an arrestee’s person, but only to searches of the area under the

arrestee’s immediate control.

       As support, the court seizes on Riley’s acknowledgement of “Robinson’s

admonition that searches of a person incident to arrest, ‘while based upon the need to

disarm and to discover evidence,’ are reasonable regardless of ‘the probability in a

particular arrest situation that weapons or evidence would in fact be found.’ ” ___ U.S. at

___, 134 S. Ct. at 2485 (quoting Robinson, 414 U.S. at 235). The court references this

statement as proof that, “far from overruling or narrowing Robinson, the [Supreme] Court

[in Riley] recognized again Robinson’s ‘categorical rule’ allowing a search of the person

of an arrestee justified only by the custodial arrest itself . . . .”

       The court misinterprets Robinson, and entirely ignores the remainder of Riley,

including its holding, which “decline[d] to extend Robinson to searches of data on cell

phones” based on the rationales from Chimel. ___ U.S. at ___, 134 S. Ct. at 2485. As

the Supreme Court explained, Robinson rejected the need for “case-by-case adjudication”

to determine whether the Chimel rationales were present in a “particular arrest situation.”

Id. at ___, ___, 134 S Ct. at 2483, 2485; see also United States v. Chadwick, 433 U.S. 1,

14-15 (1977) (explaining that Robinson eliminated the need for an arresting officer “to

calculate the probability that weapons or destructible evidence may be involved” before

conducting a search incident to arrest), abrogated on other grounds by California v.

Acevedo, 500 U.S. 565 (1991). But neither Robinson nor Riley rejected the Chimel

rationales as bookends for the circumstances under which the search-incident-to-arrest


                                                D-8
exception applies. 3 See, e.g., Knowles v. Iowa, 525 U.S. 113, 119 (1998) (rejecting the

search-incident-to-arrest exception in the context of issuance of citations, “a situation

where the concern for officer safety is not present to the same extent and the concern for

destruction or loss of evidence is not present at all.”). After all, the Supreme Court

framed the question in Riley as “whether application of the search incident to arrest

doctrine to this particular category of effects would ‘untether the rule from the

justifications underlying the Chimel exception.’ ” Riley, 134 S. Ct. at 2485 (emphasis

added) (quoting Arizona v. Gant, 556 U.S. 332, 343 (2009)).

       More broadly, it is clear that the court needs to cast aside the Chimel rationales to

reach its decision today.     The only justification for allowing police to conduct a

warrantless breath test is the preservation of evidence due to the natural dissipation of

alcohol from a person’s bloodstream.        In McNeely, however, the Supreme Court

specifically rejected the proposition that the natural metabolization of alcohol constitutes

a per se exigency justifying a warrantless blood test. ___ U.S. at ___, 133 S. Ct. at 1568.

It 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

3
       In fact, in an opinion concurring in part and concurring in the judgment, Justice
Alito wrote separately to advance a variation on the court’s argument today: that “the
[search-incident-to-arrest] rule is not closely linked to the need for officer safety and
evidence preservation” because “these rationales fail to explain the rule’s well-recognized
scope.” Riley, ___ U.S. at ___, 134 S. Ct. at 2496 (Alito, J., concurring). Whatever the
merits of Justice Alito’s argument, it is notable that no other member of the Supreme
Court joined Justice Alito’s concurrence, and that the majority opinion in Riley continued
to adhere to the two rationales from Chimel.


                                            D-9
       over easily disposable evidence, BAC evidence from a drunk-driving
       suspect naturally dissipates over time in a gradual and relatively predictable
       manner.

Id. at ___, 133 S. Ct. at 1561 (internal citations omitted). The Supreme Court then made

clear that officers are required to get a warrant to test a suspect’s blood alcohol content if

they can reasonably do so under the circumstances. Id. at ___, 133 S. Ct. at 1561-63; see

also Riley, ___ U.S. at ___, 134 S. Ct. at 2495 (stating that the answer to “what police

must do before searching a cell phone seized incident to arrest is accordingly simple—get

a warrant”).   It strains credulity to suppose that, after the Supreme Court carefully

examined the exigent-circumstances exception in McNeely, it would conclude in some

future case that the search would have been justified anyway under the search-incident-

to-arrest doctrine, which according to Chimel and Riley turns on the same rationale

regarding the preservation of evidence that the Supreme Court explicitly rejected in

McNeely. See ___ U.S. at ___, 133 S. Ct. at 1557 (noting that McNeely was under arrest

when the blood test was performed); see also State v. Villarreal, ___ S.W.3d ___, 2014

WL 6734178, at *15 (Tex. Crim. App. Nov. 26, 2014) (holding that the search-incident-

to-arrest exception “is inapplicable” to a warrantless blood draw because neither of the

two Chimel justifications applies). In fact, by casting aside Chimel’s rationales and

creating a novel bright-line rule, the court simply readopts a per se exigency under a

different name. See State v. Shriner, 751 N.W.2d 538, 549 (Minn. 2008) (establishing

the evanescent nature of alcohol in the bloodstream as a single-factor exigency),

abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1558 & n.2 (2013) (no

such single-factor exigency exists).


                                            D-10
                                             II.

       The only remaining question is whether the test-refusal statute, which requires a

person to submit to a breath, blood, or urine test upon suspicion of drunk driving or face

stiff criminal penalties, is constitutional. See Minn. Stat. §§ 169A.20; 169A.24; 169A.25;

169A.26 (2014) (making the crime of test refusal a first-, second-, or third-degree

driving-while-impaired offense depending on whether an aggravating factor is present).

We conclude that, in Bernard’s case, it is not.

       In Camara v. Municipal Court of S.F., 387 U.S. 523 (1967), the Supreme Court

held that a state cannot criminalize the refusal to consent to an illegal warrantless search.

Id. at 540; see also See v. City of Seattle, 387 U.S. 541 (1967) (companion case). The

appellant in Camara was charged with a misdemeanor offense when he refused to allow

housing inspectors to enter his residence to conduct a search of the premises without a

warrant. 387 U.S. at 525-27. The prosecution arose out of a San Francisco ordinance

that allowed certain “[a]uthorized employees” of the City to “enter, at reasonable times,

any building, structure, or premises in the City to perform any duty imposed upon them

by the Municipal Code.” Id. at 526, 527 n.2. Once the Supreme Court concluded that the

search was illegal, it held that the “appellant had a constitutional right to insist that the

inspectors obtain a warrant to search and that appellant may not constitutionally be

convicted for refusing to consent to the inspection.” Id. at 540.

       There are, to be sure, instances in which it would be constitutional to apply the

test-refusal statute to impose criminal penalties on suspected drunk drivers who refuse a

blood, breath, or urine test. But those instances are limited to circumstances in which the


                                           D-11
underlying search would be constitutional, such as those identified in McNeely when,

under a totality of the circumstances, it is unreasonable for officers to obtain a warrant.

McNeely, ___U.S.___, 133 S. Ct. at 1561. The State does not argue in this case that it

was unreasonable for the officers to obtain a warrant under the totality of the

circumstances. Accordingly, because the search in this case was not a valid warrantless

search, and the State may not constitutionally convict persons who exercise their

“constitutional right to insist that [police] obtain a warrant,” Camara, 387 U.S. at 540, we

would affirm the district court’s decision to dismiss the two counts of test refusal against

Bernard.

       For the foregoing reasons, we respectfully dissent.




                                           D-12
