Arrested? I can help: 612-333-8001

Minnesota’s Implied Consent Law and Refusing to Submit to a Breath Test

Minnesota’s Implied Consent Law and Refusing to Submit to a Breath Test

Under Minnesota’s implied consent law, anyone with a driver’s license who is lawfully arrested by a police officer for suspected driving under the influence (DUI) or driving while intoxicated (DWI) must submit to a breath test to determine his/her blood alcohol concentration (BAC). Further, a driver involved in an automobile accident that results in property damage, serious injury, or death, must also submit to a chemical BAC test. Finally, if a suspected drunk driver is unconscious then the law permits testing for his/her BAC without consent.

Refusing a breath test is a crime penalized by a one-year driver’s license revocation in addition to any other criminal sanctions that arise from a plea bargain or trial. For second and subsequent offenses, the revocation period increases by an additional year for each conviction.

U.S. Supreme Court Weighs In

Because Minnesota’s implied consent law required drivers to submit to a test of the officer’s choosing—breath, urine, or blood—concern arose as to whether requiring an individual to submit to an invasive chemical test is a constitutional violation of the Fourth Amendment’s protection against unreasonable searches and seizures without a warrant. As a result, the U.S. Supreme Court struck down part of the state law that forced suspected drunk drivers to submit to blood test or face additional punishment. However, the Court also held that requiring a breath test without a warrant or face penalties was not unconstitutional.

In three consolidated cases including State of Minnesota v. Bernard, the Court examined the constitutionality of requiring chemical tests without a warrant. In Bernard, St. Paul police officers received a tip that three intoxicated men had gotten into a pickup truck at a local public boat launch area. When they arrived, Bernard was in his underwear, appeared dazed, admitted to drinking alcohol, and smelled of alcohol. Further, his truck was hanging from the edge of the boat ramp. Bernard said he wasn’t the one driving his truck, and he refused to submit to a chemical test.

The Minnesota Supreme Court held that a breath test would be no more intrusive than other types of preliminary searches that had already been upheld by higher courts as searches incident to valid arrests. The U.S. Supreme Court agreed, upholding the validity of criminalizing refusals to submit to preliminary breath tests because blowing into a breathalyzer is no more invasive than drinking through a straw. Further, exhaled air is not part of a human’s body and, therefore, would be exhaled with or without a test.

If law enforcement officers give a suspect a breath test that suggests s/he is, in fact, legally drunk, then officers can request a warrant for a subsequent blood test; however, to demand a blood test without a warrant would violate the Fourth Amendment. Since most breathalyzers are not performed roadside but after the suspect is taken into custody—sometimes as many as 45 minutes later—this is ample time for officers to obtain a warrant for a more intrusive test, according to Justice Sotomayor. Justice Alito argued that seeking additional warrants would overburden judges; however, Justice Sotomayor demonstrated that seeking said warrants would add, on average, a mere one additional warrant issue each week in the state. In his dissent, Justice Thomas asserted that neither blood nor breath tests should require warrants.

What to Do?

When faced with an impending BAC test, experts recommend contacting an attorney before doing so. An experienced and knowledgeable DUI/DWI attorney can provide the best guidance and assistance for navigating through the complexities inherent to potential DUI/DWI prosecution. For more information, or if you or a loved one is facing a DUI/DWI, please contact us.

Client Testimonials

To meet your needs, I provide 24 hour service, off-site appointments, and a free initial consultation. Contact my Minneapolis law office to have a knowledgeable criminal defense attorney on your side.

See More Client Testimonials


Case Results


County: Scott

Type of Charge: 3rd DWI

Priors: 1 prior

Final Deposition: Plead to a 4th degree DWI

Sentence Imposed: No jail


County: Dakota

Type of Charge: Harassment Order

Priors: None

Final Deposition: Dismissed

Sentence Imposed:


County: Hennepin

Type of Charge: Solicitation of Prostitute

Priors: 1 prior

Final Deposition: Stay of imposition vacate and dismiss

Sentence Imposed: No jail

View More Case Results

Contact Details

Flour Exchange Building, 310 4th Avenue South, Minneapolis, MN 55415

Phone: 612-333-8001

Fax: 612-333-8003