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Breath but not blood? Justices mull Minnesota's law on sobriety tests for drivers

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Minnesota stood in the nation's legal spotlight Wednesday, as the U.S. Supreme Court considered the constitutionality of the law making it a crime for drunk driving suspects to refuse to submit to breath or blood tests.

Minnesota's law maintains that a driver's consent to be tested for intoxication is implied when that person gets behind the wheel.

Critics say laws allowing officers to test a suspect's breath, blood, or urine without a warrant violate the Fourth Amendment of the Constitution, which protects against unreasonable search or seizure.

Arguments before the Supreme Court

Comments and questions from the Supreme Court justices while cases are being argued often provide clues as to how the court is leaning.

Reports from Washington suggest that on Wednesday some justices sounded skeptical about the constitutionality of Minnesota's law (and the 12 others like it around the country).

Justice Anthony Kennedy told lawyers defending the law: "You're asking for us to make it a crime to exercise what many people think of as a constitutional right," USA Today reports.

Some justices wondered why the states don't make getting a warrant standard procedure before administering the tests, the Associated Press says.

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But there were also signs that a middle ground might be forming, under which a blood or urine test would require a warrant but a less invasive breath test would not.

In suggesting that breath tests are not invasive, Justice Stephen Breyer commented that people have to exhale anyway, the Star Tribune reports.

A lawyer whose client is challenging the law called breath tests "a significant intrusion on personal liberty" but was interrupted by Justice Elena Kagan, who said “this is about as uninvasive as a test can be!” the newspaper says.

The Minnesota case

Minnesota's law is being challenged by an Eagan man, William Bernard, Jr., who was arrested in South St. Paul in 2012 after refusing to submit to sobriety testing.

A Minnesota district court threw out the two felony charges against Bernard but they were reinstated by an appeals court and upheld by the state Supreme Court.

Arguments were also presented Wednesday in a similar challenge to North Dakota's law. Lawyers for the Obama administration are supporting the state laws and a deputy Solicitor General was part of Wednesday's arguments.

The Star Tribune reports the cases were discussed in court for more than an hour and a decision is expected within two months.

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