By Pat Pheifer

Star Tribune

A suspected drunken driver can still be charged with refusing to take a breath or blood test if arresting officers believe there is enough evidence to get a search warrant to require the test — even if they don’t obtain the warrant.

That’s the gist of a published ruling Monday from the Minnesota Court of Appeals.

But it’s a ruling that isn’t likely to go into effect at least until the state Supreme Court decides whether it will hear an appeal from attorneys for the respondent, William R. Bernard Jr.

Bernard, 31, of South St. Paul, who has at least two drunken driving convictions dating from 2006, was charged August 2012 in Dakota County District Court with two felony counts of refusal to submit to a chemical test. Witnesses had identified him to South St. Paul police as the man driving a truck that had gotten stuck while attempting to remove a boat from the Mississippi River at a public boat ramp. He denied being the driver but had the keys to the truck in his hand and smelled strongly of alcohol.

District Judge Jerome Abrams dismissed the charges in July 2013, citing a U.S. Supreme Court decision that limited the power of police officers to take a blood-alcohol sample without a warrant. He did not rule the state’s implied-consent statute unconstitutional, but said officers should have obtained a warrant before they brought charges. Had they done that, they could have required Bernard to take a breath or a blood test.

The state appealed.