26. Gildea upholds "Breath Test Refusal" as a Crime.

Chief Justice Lorie Skjerven Gildea wrote for the Supreme Court in upholding the constitutionality of "test refusal" as a crime.  She was upheld on breath tests by the United States Supreme Court.


2015-010*       State of Minnesota, Respondent, vs. William Robert Bernard, Jr., Appellant.

The U.S. Supreme Court later upheld Chief Justice Lorie Skjerven Gildea's decision to uphold the crime of "test refusal" on breath tests.  The U.S. Supreme Court held that refusal of a blood test could not be a separate crime.

MAJORITY:  Minnesota law makes it a crime for a driver to refuse a request to take a breath test to detect the presence of alcohol if certain conditions are met, including that the driver has been validly arrested for driving while impaired. 

The question presented in this case is whether Minnesota's “breath 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 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.

HELD:  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.