A15-0076
STATE OF MINNESOTA IN SUPREME COURT ______
STATE OF MINNESOTA,
Petitioner,
vs.
RYAN MARK THOMPSON,
Respondent. ______
SUPPLEMENTAL BRIEF OF AMICUS CURIAE MINNESOTA ATTORNEY GENERAL ______
DANIEL A. McINTOSH LORI SWANSON Steele County Attorney Minnesota Attorney General JULIA ANN FORBES ALETHEA M. HUYSER Assistant Steele County Attorney Assistant Solicitor General 303 South Cedar Atty. Reg. No. 0389270 Owatonna, MN 55060 MICHAEL EVERSON (651) 227-9411 Assistant Attorney General Atty. Reg. No. 0388310 ATTORNEYS FOR PETITIONER 445 Minnesota Street, Suite 1800 St. Paul, MN 55101-2128 CHARLES ALAN RAMSAY (651) 757-1371 DANIEL JOSEPH KOEWLER Ramsay Law Firm, PLLC ATTORNEYS FOR AMICUS 2780 Snelling Avenue North CURIAE MINNESOTA Suite 330 ATTORNEY GENERAL Roseville, MN 55113
ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS
Page
INTRODUCTION ...... 1
ARGUMENT ...... 1
I. The Test Refusal Statute As Applied To Urine Is Constitutional Under The Fourth Amendment...... 1
A. The Birchfield Decision...... 1
B. The Birchfield Decision Establishes That Urine Testing Is A Reasonable Search Incident To Arrest...... 3
CONCLUSION ...... 7
i TABLE OF AUTHORITIES
Page FEDERAL CASES
Birchfield v. North Dakota, -- U.S. --, 2016 WL 3434398 (June 23, 2016) ...... passim
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) ...... 4
Illinois v. Caballes, 543 U.S. 405 (2005) ...... 4
Mack v. United States, 653 F. Supp. 70 (S.D.N.Y. 1986) ...... 3
Maryland v. King, 133 S. Ct. 1958 (2013) ...... 4
Missouri v. McNeely, 133 S. Ct. 1552 (2013) ...... 2, 3
Skinner v. Railway Labor Exec. Association, 489 U.S. 602 (1989) ...... 2, 4
Vernonia School District v. Acton, 515 U.S. 646 (1995) ...... 3, 4
Weeks v. United States, 232 U.S. 383 (1914) ...... 6
STATE CASES
State v. Bernard, 859 N.W.2d 762 (Minn. 2014) ...... 5
State v. Riley, 226 N.W.2d 907 (Minn. 1975) ...... 5
STATUTES
Minn. Stat. § 169A.51 ...... 4
Minn. Stat. § 169A.20 ...... 6
ii STATE RULES
Minn. R. 7502.0400 ...... 5
MISCELLANEOUS
Minnesota Department of Public Safety , DMT Operator Training Manual (2nd ed. Sept. 8, 2015) ...... 5
Wayne R. LaFave, 3 Search & Seizure § 5.3(c) (5th ed. 2015) ...... 6
iii INTRODUCTION
On June 29, 2016, the Court ordered supplemental briefing “addressing the impact of the decision by the United States Supreme Court in Birchfield v. North Dakota , -- U.S.
--, 2016 WL 3434398 (June 23, 2016), on the claims raised in this appeal.” As outlined below, the U.S. Supreme Court decision in Birchfield establishes that the Fourth
Amendment is the proper analytical framework for analyzing the constitutionality of
Minnesota’s criminal test refusal statute. More importantly, the Birchfield decision provides further support to the State of Minnesota’s position that requiring a urine sample when there is probable cause that a motorist was driving while impaired is a reasonable and constitutional search.
ARGUMENT
I. THE TEST REFUSAL STATUTE AS APPLIED TO URINE IS CONSTITUTIONAL UNDER THE FOURTH AMENDMENT .
A. The Birchfield Decision.
In Birchfield , the U.S. Supreme Court conducted a Fourth Amendment analysis to determine that Minnesota’s test refusal statute was constitutional as applied to breath testing. -- U.S. at --, 2016 WL 3434398 at *19-25 (June 23, 2016). In conducting this analysis, the Court found breath testing was a valid search incident to arrest after balancing “the degree to which [the search] intrudes upon an individual’s privacy and . . . the degree to which it is needed for the promotion of legitimate governmental interests.”
Id. at *16.
The Court recognized the substantial state interests served by the test refusal statute, including the State’s “paramount interest . . . in preserving the safety of . . . public highways.” Id. at *19-20. Impaired driving “is a leading cause of traffic fatalities and injuries[,]” resulting in one death every 53 minutes on the nation’s highways. Id. Test refusal laws provide a strong incentive for suspected impaired drivers to cooperate with testing, which the Court found was “a very important function[.]” See id. (recognizing that “license suspension alone is unlikely to persuade the most dangerous offenders, such as those who drive with a BAC significantly above the current limit of 0.08% and recidivists, to agree to a test that would lead to severe criminal sanctions”).
The Court balanced the substantial state interests served by the test refusal statute against the extent to which provision of a breath sample intrudes upon an individual’s privacy. “Breath tests do not require piercing the skin and entail a minimum of inconvenience.” Id. at *17. Such testing reveals only the amount of alcohol in a subject’s breath and is “normally administered in private” after the “individual’s expectation of privacy is necessarily diminished” by his arrest. Id. at *18. Thus, the
Court found provision of a breath sample was a reasonable search incident to arrest. Id.
The Court contrasted breath testing with the extraction of a blood sample, which involves “a compelled physical intrusion beneath [the impaired driver’s] the skin and into his veins”. Id. (quoting Missouri v. McNeely , 133 S. Ct. 1552, 1558). Unlike breath, which humans naturally exhale on a continuing basis, giving blood “require[s] piercing the skin [to] extract a part of the subject’s body.” Skinner v. Railway Labor Exec. Assn. ,
489 U.S. 602, 625 (1989). For many people, exposure to needles or blood may trigger
2 intense stress. Birchfield, -- U.S. at --, 2016 WL 3434398 at *18. Given the availability of breath testing, the Court found it unreasonable to subject impaired motorist to the
“significantly more intrusive” blood test. Id. at * 25.
B. The Birchfield Decision Establishes That Urine Testing Is A Reasonable Search Incident To Arrest.
The Birchfield Court did not address urine testing, but the reasoning underlying the Court’s breath and blood analysis establish that urine testing is a reasonable search incident to arrest. As with breath, providing a urine sample involves only a “negligible” privacy intrusion. See Vernonia School Dist. v. Acton , 515 U.S. 646, 657 (1995). Unlike blood testing, urine requires no piercing of the skin or extraction of a part of the subject’s body. Cf. Missouri v. McNeely , 133 S. Ct. 1552, 1558 (2013) (stating that blood draws are invasive because “a compelled physical intrusion beneath [the defendant’s] skin and into his veins”). “A urine sample calls for nothing more than a natural function performed by everyone several times a day – the only difference being the collection of the sample in a jar.” Mack v. United States , 653 F. Supp. 70, 75 (S.D.N.Y. 1986)
(concluding that “collecting a urine sample is minimally intrusive”). Like breath, which
“sooner or later would be exhaled even without the test[,]” urine is naturally expelled from the body. See Birchfield , -- U.S. at --, 2016 WL 3434398 at *17 (finding no significant intrusion associated with breath testing because “[t]he air that humans exhale is not part of their bodies” and “all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test”).
3 In fact, the U.S. Supreme Court has expressly distinguished between blood and urine testing, stating that unlike blood testing, “the procedures prescribed . . . for collecting and testing urine samples do not entail a surgical intrusion into the body.”
Skinner v. Railway Labor Exec. Ass’n , 489 U.S. 602, 625 (1989). An impaired motorist would provide a urine sample in a private area of a police station or jail. 1 It is not unusual or embarrassing for a person to urinate in a public restroom, let alone in a private area at the police station. See Vernonia School Dist. , 515 U.S. at 658 (upholding school policy requiring student athletes provide urine samples in part because the urine samples were taken under conditions “nearly identical to those typically encountered in public restrooms”); Birchfield , -- U.S. at --, 2016 WL 3434398 at *17 (upholding breath testing because “there is nothing painful or strange about” requiring an arrestee to “insert the mouthpiece of the machine into his or her mouth”). If a particular individual has an aversion to providing a urine sample, an officer must allow the motorist to instead take a blood or breath test. See Minn. Stat. § 169A.51, subd. 3.
1 An officer must take a urine sample in a reasonable manner to comply with the Fourth Amendment. See Maryland v. King , 133 S. Ct. 1958, 1970 (2013) (recognizing that a search “must be reasonable in its . . . manner of execution”). If a particular case involves taking urine in an unreasonable or offensive manner, that particular search would violate the Fourth Amendment. See Illinois v. Caballes , 543 U.S. 405, 412 (2005) (noting a search that is “lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution”). Thompson refused a urine test, so this case does not involve an unreasonably conducted search. By challenging the search authorized by the statute (rather than the manner in which a particular search was conducted), Thompson is essentially asserting a facial challenge to the statute as applied to urine testing, so he must demonstrate the statute would violate the Fourth Amendment in all applications. See City of Los Angeles v. Patel , 135 S. Ct. 2443, 2451 (2015) (stating that a party asserting a facial challenge under the Fourth Amendment must demonstrate the “law is unconstitutional in all of its applications”).
4 Beyond its minimally intrusive nature, urine testing in some cases will be the only readily available means of testing for impairment. In rural parts of the state, it may require significant time to travel to a working breath-test machine with a certified machine operator. 2 Breath testing is also ineffective in cases of non-alcohol impairment because breath testing does not detect controlled substances. Birchfield , -- U.S. at --,
2016 WL 3434398 at *25. 3 Urine testing is a minimally invasive option that detects both alcohol and drugs, and can be conducted anywhere there is a private place for the impaired motorist to provide the sample.
Moreover, the provision of a urine sample does not occur unless a person is under arrest for impaired driving, which substantially diminishes any expectation of privacy.
See State v. Riley , 226 N.W.2d 907, 910 (Minn. 1975) (noting that following an arrest
“the significant intrusion is the fact of custody of defendant’s person, and any warrantless search of the defendant during that custody would seem to be proper”). It is well established that police may “conduct a full search of the person who has been lawfully arrested.’” State v. Bernard , 859 N.W.2d 762, 767 (Minn. 2014). This includes “the
2 As exemplified by the 141-page manual published by the Minnesota Department of Public Safety, breath-test machines are not simple devices. See Minnesota Department of Public Safety, DMT Operator Training Manual (2nd ed. Sept. 8, 2015), available at: https://dps.mn.gov/divisions/bca/bca-divisions/forensic-science/Documents/DMT%20 Operator%20Training%20Manual%20v2.0.pdf. An operator must undergo training and be certified before using the device. Minn. R. 7502.0400. 3 Birchfield recognized that breath testing does not detect drugs, but concluded that the highly intrusive nature of extracting blood from a person’s veins rendered such a search unreasonable in the absence of a warrant. Birchfield , -- U.S. at --, 2016 WL, 3434398 at *25-26. As discussed above, urine testing involves minimal intrusion upon privacy and substantial governmental benefits, and therefore is distinguishable from drawing blood.
5 placing of the arrestee’s hands under an ultraviolet lamp, examining the arrestee’s arms to determine the age of burn marks, swabbing the arrestee’s hand with a chemical substance, taking scrapings from under the arrestee’s fingernails, [and] taking a small sample of hair from the arrestee’s head.” See Wayne R. LaFave, 3 Search & Seizure
§ 5.3(c) (5th ed. 2015) (collecting cases). See also Birchfield , -- U.S. at --, 2016 WL
3434398 at *14 (quoting Weeks v. United States , 232 U.S. 383, 392 (1914)) (recognizing that law enforcement may “search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime”).
Provision of a urine sample is not materially different from other full-body searches conducted incident to arrest. The urine sample is taken in connection with an impaired driving arrest, and the impaired motorist’s status as an arrestee diminishes his privacy interests. Unlike blood, urine testing involves no piercing of the skin or intrusion into the body. Urine testing furthers the State’s substantial interest in preserving highway safety by detecting both drugs and alcohol, and does so in a reasonable manner consistent with the Fourth Amendment. Therefore, this Court should hold that Minnesota Statutes section 169A.20, subdivision 2 is constitutional as applied to urine testing.
6
CONCLUSION
The test refusal statute as applied to urine testing substantially furthers the State’s compelling interest in preventing drunk driving, and does so in a reasonable manner consistent with the Fourth Amendment. Therefore, this Court should reverse the decision of the court of appeals and hold that the test refusal statute is constitutional.
Dated: July 20, 2016 Respectfully submitted,
LORI SWANSON Attorney General State of Minnesota
/s/ Michael Everson ALETHEA M. HUYSER Assistant Solicitor General Atty. Reg. No. 0389270
MICHAEL EVERSON Assistant Attorney General Atty. Reg. No. 0388310
445 Minnesota Street, Suite 1800 St. Paul, Minnesota 55101-2134 (651) 757-1371 (Voice) (651) 282-2525 (TTY) [email protected]
ATTORNEYS FOR AMICUS CURIAE MINNESOTA ATTORNEY GENERAL
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