By Mike Mosedale
The Daily Record Newswire
MINNEAPOLIS, MN — When the U.S. Supreme Court heard oral arguments in Bernard v. Minnesota on April 20, one thing became apparent pretty quickly: None of the justices on the high court has ever been pinched for a DWI.
At least that was the takeaway from attorney Daniel Gerdts, who penned an amicus brief for the Minnesota Association of Criminal Defense Lawyers in support of the constitutional challenge to the Minnesota law that makes it a crime for a suspected drunken driver to refuse a breath test.
Gerdts said Justice Elena Kagan exposed how little she and the other justices knew about “the day-to-day mechanics” of DWI enforcement about halfway through the oral arguments when she pressed for an explanation for why police should be required to get a warrant before conducting a preliminary roadside breath test.
That’s because the central issue in Bernard doesn’t have anything to do with the preliminary roadside breath test, Gerdts said. The issue is whether police should be required to get a warrant for the evidentiary breath test — a separate test that is conducted post-arrest, typically at a police station or a hospital, with a different machine, the Datamaster DMT, after the reading of the implied consent advisory.
Gerdts said the court’s confusion on the issue was a valuable lesson. “As a practitioner who does appellate work, you shouldn’t assume the judges know what you’re talking about,” said Gerdts, speaking at a post-Bernard CLE hosted by the Minnesota State Bar Association on Wednesday.
Criminal defense lawyer Barry Edwards, a co-author on the MACDL amicus brief and the moderator of the discussion, echoed Gerdts’ sentiment.
“When I say almost nobody understands what the issues are in Bernard, I’m actually referring to the United States Supreme Court,” said Edwards.
When the justices’ lack of understanding about the two types of breath tests became apparent, Edwards added, “Most of us who were sitting in the peanut gallery just cringed.”
Kathryn Keena, the Dakota County prosecutor who argued the state’s case before the high court, said she wasn’t to blame for the confusion because, she said, she laid out the key distinctions in her brief.
“Maybe they didn’t read the brief,” she ventured.
Hamline Mitchell law professor Ted Sampsell-Jones was more inclined to cut the justices some slack.
Because Bernard was consolidated with two related cases out of North Dakota, he said, the petitioners attorney had strategic reason to gloss over such distinctions and, consequently, the merit briefing “wasn’t very elucidating.”
All the panelists agreed that once the breath test issue was clarified, the tone of the court’s discussion seemed to shift against the state.
So how will the Supreme Court rule?
Keena was the sole panelist to say she expects the court will uphold Bernard. Keena ventured that the justices will do so by drawing a sharp distinction between warrantless blood tests — which the court struck down two years ago in Missouri v. McNeely — and the much less intrusive warrantless breath tests at issue in Bernard.
Gerdts said that outcome wouldn’t shock him. Still, he predicted the court would strike down the Minnesota law by a vote of 5-3.
Sampsell-Jones noted that the petitioners likely lost their strongest advocate on the court with the death of Justice Antonin Scalia. Scalia favored the establishment of bright line tests in Fourth Amendment cases, he pointed out, while the more centrist justices on the court tend to favor balancing tests. With Bernard, that test would likely weigh the difficulty of obtaining a warrant against the intrusiveness of the search.
Applying such a test, Sampsell-Jones said he thinks the high court will still rule against the state because technology makes it so easy for police to get a warrant. And he said he was highly skeptical about the likelihood that the court will adopt the search incident to arrest exception the Minnesota Supreme Court’s invoked when it affirmed Bernard.
What happens if Bernard is struck down?
The panelist agreed on the answer to that question: the Legislature will have to rewrite the state’s implied consent law and they’ll probably get it done in a hurry.
There wasn’t much discussion about the larger on-the-ground impacts if the test refusal law is deemed unconstitutional, although Sampsell-Jones closed his remarks with a light-hearted reference to the issue.
“In 20 years, we’ll all have self-driving cars, so this case won’t have a lasting impact,” he said wryly.
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