Minnesota’s refusal to consent to a DUI blood or urine test is unconstitutional under Birchfield

Minnesota’s refusal to consent to a DUI blood or urine test is unconstitutional under Birchfield. State v. Thompson, 2016 Minn. LEXIS 656 (Oct. 12, 2016):

Thompson refused both a blood and a urine test. Birchfield is dispositive with respect to the blood test that Thompson refused. A warrantless blood test may not be administered as a search incident to a lawful arrest of a suspected drunk driver. See also State v. Trahan, No. A13-0931, 2016 Minn. LEXIS 660, *7 (Minn. filed Oct. 12, 2016) (holding that test refusal statute was unconstitutional as applied to a driver prosecuted for refusing a warrantless blood test). The Court in Birchfield did not address whether warrantless urine tests were constitutional under the search-incident-to-arrest exception. But Birchfield presents the appropriate framework for us to analyze the constitutionality of Minnesota’s test refusal statute as it applies to warrantless urine tests.

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Although urine tests resemble breath tests in terms of a lack of physical intrusiveness, the fact that a urine test “places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple [alcohol concentration] reading” makes urine tests comparable to blood tests. Birchfield, __ U.S. at __, 136 S. Ct. at 2178. Indeed, Thompson argues, there is an even greater risk associated with urine samples, as they can “contain additional metabolites and other types of ‘highly personal information’ that will never appear in a blood sample.”

Regardless of whether urine samples contain more information than blood samples, the logic in the Court’s analysis of blood tests applies with equal force to urine tests. A breath test, as the Court noted, is capable of revealing only one thing in the hands of law enforcement: an individual’s blood-alcohol concentration. Id. at __, 136 S. Ct. at 2177. Urine tests, on the other hand, can be used to detect and assess a wide range of disorders and can reveal whether an individual is pregnant, diabetic, or epileptic. See Skinner, 489 U.S. at 617. Moreover, no breath sample remains after a breath test, see Birchfield, __ U.S. at __, 136 S. Ct. at 2177. But that is not true with respect to a urine test. Even when law enforcement is prohibited from using the collected urine samples for purposes other than alcohol concentration testing, “the potential [for abuse] remains and [the test] may result in anxiety for the person tested.” Id. at __, 136 S. Ct. at 2178. The taking of a urine sample, therefore, raises the same privacy concerns that the Court addressed in Birchfield with regard to blood tests.

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In sum, in terms of the impact on an individual’s privacy, a urine test is more like a blood test than a breath test. Specifically, although a urine test does not require a physical intrusion into the body in the same way as a blood test, urine tests have the potential to provide the government with more private information than a breath test, and there can be no question that submitting to a urine test under the watchful eye of the government is more embarrassing than blowing into a tube.

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Based on our analysis, we hold that a warrantless urine test does not qualify as a search incident to a valid arrest of a suspected drunk driver. Such tests significantly intrude upon an individual’s privacy and cannot be justified by the State’s interests given the availability of less-invasive breath tests that may be performed incident to a valid arrest.

II.

If we conclude that the warrantless blood or urine test would have been unconstitutional under the Fourth Amendment, the State argues that Thompson is still not entitled to relief because of the good-faith exception to the exclusionary rule, which we adopted in State v. Lindquist, 869 N.W.2d 863 (Minn. 2015). The State argues that because the arresting officer objectively relied in good faith on binding appellate precedent in choosing not to obtain a warrant in Thompson’s case, we should decline to suppress evidence of Thompson’s test refusal and uphold his conviction.