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Minnesota appeals court upholds DWI test without warrant

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The Minnesota Court of Appeals has upheld the state's "implied consent" law that gives police the right to arrest a driver for refusing to be tested for intoxication. The opinion basically says a law enforcement officer does not actually need to get a warrant to conduct a DWI test on a driver if the officer could have gotten a warrant, Minnesota Lawyer reports.

The three-judge panel released its opinion in the case of William Bernard Jr., who was charged in August 2012 with two felony counts of refusing to submit to a sobriety test. South St. Paul police arrested him at a public boat ramp after witnesses identified him as the driver of a truck that had gotten stuck while trying to pull a boat out of the water, the Star Tribune reports. Bernard denied being the driver, but he was holding the keys in his hand and smelled strongly of alcohol.

Bernard refused to take a breath test to determine his blood alcohol content. Police charged him with DWI under the “implied consent law,” which gives police the right to test a driver without a warrant because the alcohol in the person's system could dissipate by the time a search warrant was obtained. When you drive in Minnesota, you agree to be tested for driving under the influence -- that's the "implied consent."

A lower court judge dismissed the charges against Bernard last July, saying the police should have obtained a warrant to show they had cause to test Bernard for DWI. The appeals court basically ruled that because there was plenty of evidence against Bernard, getting a warrant for the test would not have been a problem. And because there was so much evidence, the police didn't need a warrant.

The ruling reinstates the charges against Bernard and sends the case back to district court.

But the larger question of whether the implied consent law is constitutional has still not been definitively answered, and the appeals court did not rule on that question.

The Minnesota Supreme Court ruled last year that warrants are not needed for DWI tests if the driver gives consent. And a U.S. Supreme Court ruling in April of last year said a warrant is required, but not necessarily in all cases.

Jeff Sheridan, who represented Bernard in the appellate court case, said seven lower court judges have dismissed charges stemming from test refusals; all have been appealed, according to the Star Tribune.

Sheridan argues that making it a crime to refuse a blood alcohol test is unconstitutional, because it “says we can make it a crime for you not to give evidence against yourself,” said the Star Tribune.

But Scott Swanson at the University of St. Thomas Law School disagreed with Sheridan's reading of the ruling. Police had “pretty good probable cause” to arrest Bernard for drunken driving, he said, according to the paper.

Attorney Steven Grimshaw, who represented Bernard in the lower court, said his client has been sober for 15 months. He completed a yearlong program at an addiction treatment center, and served two tours of duty in Iraq, the Star Tribune reports.

“We’re obviously going to the Supreme Court with this,” Grimshaw said.

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