Under Minnesota’s “implied consent” law (Minn. Stat. 169A.51), if an individual has been lawfully arrested by a police officer for a DWI/DUI then s/he automatically consents to a chemical breath, urine, or blood test to determine his/her blood alcohol content (BAC). The test must be administered within two hours of driving (or boating); however, the law also states that a motorist suspected of DWI/DUI consents to taking a preliminary breath test as part of a roadside sobriety evaluation. Refusal to submit to breath testing is likely to result in arrest, thus forcing compliance with the law.

Some situations exist that permit law enforcement officers to force an individual to take a chemical BAC test without the individual’s consent. An individual involved in a motor vehicle accident where someone was killed or seriously injured does not possess a right of refusal. Similarly, if a suspect is unconscious—or killed—then consent is not required.


In July 2016, the U.S. Supreme Court struck down part of Minnesota’s law that forces individuals suspected of driving under the influence to submit to a blood BAC test without a warrant for fear of additional criminal penalties. The Court also affirmed a recent Minnesota Supreme Court decision that police authorities can, in fact, force a suspect to submit to a breath test without a warrant, and refusal to do so can be criminalized.

A breath test is not considered an unlawful or unreasonable intrusion in violation of the Fourth Amendment’s protection against unreasonable searches and seizures. Because of the non-invasiveness of such a test, the Court held that a search in this context amounted to no more of an intrusion than a pat-down or similar search incident to a lawful arrest. The U.S. Supreme Court affirmed the decision by asserting that the compelling government interest to prevent drunk driving accidents and fatalities outweighs the slight imposition upon the individual. In his opinion, Justice Samuel Alito asserted that a breath test is neither painful nor difficult, and air is not a part of a human’s body over which individuals have a right of ownership. After all, it will be exhaled at some point, even without a test.

On the other hand, blood tests are far more intrusive, thus requiring a higher standard of analysis to determine whether forcing an individual to comply without a warrant does, in fact, constitute an unreasonable search and seizure under the Fourth Amendment.

The Court held that the Minnesota law was improper in that it required an intrusive blood test without a warrant and imposed criminal sanctions on an individual’s refusal to submit. The availability of breath tests—which are far less invasive—render law enforcement officers’ ability to demand a more intrusive blood test without a warrant unreasonable. Further, because the majority of actual post-arrest BAC chemical tests occur as many as 45 minutes after arrest, the Court stated that officers can easily obtain a warrant during this period.


In Minnesota, refusal by a motorist to submit to breath testing carries consequences that are typically more severe than an actual DWI/DUI conviction, especially for individuals with prior similar convictions.

Under the law, refusal to consent to a chemical BAC test is punishable by revocation of the individual’s driver’s license for a minimum of one year. Individuals with prior DWI/DUI convictions are subject to an additional year—per prior conviction—added to the revocation period.

In Minnesota, one in seven motorists has a DWI/DUI conviction.

For more information, or if you or a loved one are facing charges of refusing to submit to testing or any other DWI/DUI-related offense, please contact us.