Minnesota Court of Appeals Upholds Officer’s Warrantless PBT Request

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A recent Minnesota Court of Appeals decision, from December 2021, upheld existing Minnesota law allowing officers to request a preliminary breath test (PBT) provided there is reasonable suspicion that the driver was driving while impaired.

In Mesenburg v. Commissioner of Public Safety, the court of appeals rejected the driver’s argument that because language in the 2016 United States Supreme Court case Birchfield v. North Dakota indicated that a PBT is a search implicating the Fourth Amendment, any PBT request made by law enforcement must now either be accompanied with a search warrant supported by probable cause or an exception to the warrant requirement must be shown.

The facts of involved a motorist stopped by a state trooper for speeding. During his interaction with the driver, the trooper claimed that he detected the smell of alcohol and noticed that the driver’s eyes were watery, glassy, and bloodshot. Although the driver denied drinking alcohol, the trooper nevertheless asked him to perform various field sobriety tests, which indicated to the trooper that the driver was impaired.

The trooper then asked the driver to take a PBT, which he refused. Believing that the driver refused the PBT to hide his intoxication, the trooper placed the driver under arrest for DWI.

After a court hearing, the district court judge found that much the trooper’s testimony was not credible. Accordingly, no weight was given to the trooper’s testimony regarding the driver’s bloodshot and watery eyes and slurred speech. The court also found that there was a problem with the evidence gathered from the field sobriety tests in that the driver completed two of them perfectly or nearly perfectly while the other was administered improperly and yielded inconclusive results.

Despite these findings, the court concluded that the trooper had the following reasons to suspect DWI:

• Speeding;
• Odor of alcohol; and
• Driver’s denial he had been drinking.

Ultimately the district court upheld the PBT request and subsequent arrest for DWI.

On appeal, the driver’s attorney argued that the United States Supreme Court’s decision in Birchfield compelled reversal of an earlier Minnesota case State, Dep’t of Pub. Safety v. Juncewski (1981) which held that an officer need only have a reasonable, articulable suspicion — a standard less than probable cause — to request a PBT.

The Minnesota court of appeals denied that Birchfield compelled reversal of Juncewski. The court wrote: “Nothing in Birchfield causes us to doubt our supreme court’s decision in Juncewski,” The holding Birchfield, the court of appeals noted, was that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”

The court made a distinction between an evidentiary breath test and a preliminary screening test, finding that the purpose of a PBT is to assist the officer in determining whether an arrest can be made in situations where an officer is unable to ascertain whether the driver is impaired. Additionally, unlike refusal of an evidentiary breath test, refusal to submit to a PBT cannot be used to establish any element of a crime, and the refusal of the PBT itself is not a crime.

Because the purposes of PBT and evidentiary breath tests are different and a PBT refusal results in different – lesser – consequences (probable cause to arrest rather than commission of a crime), the court of appeals held that Birchfield did not apply in this case.

If you find yourself facing DWI or OWI charges and need to explore your options including challenging the reason why your vehicle was stopped or whether the officer had sufficient cause to place you under arrest, our seasoned lawyers can help with both your criminal charges and in getting your driving privileges restored. Attorneys are available 24-7 — Call us at 612-334-3342.