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Clifton acknowledges that this court is “plainly bound by the Minnesota Supreme Court” regarding the constitutionality of the test-refusal statute as applied to breath tests.

Appellant’s arguments are foreclosed by two recent and controlling Minnesota Supreme Court cases, reh’g denied (Mar.

However, -74 (Minn. 2015).

Even were appellant’s arguments not procedurally barred

(noting that the implied- consent law “encourag[es] drivers to submit to” chemical testing).

(“[W]e hold that a warrantless breath test of [appellant] would have been constitutional under the search- incident-to-arrest exception to the Fourth Amendment’s warrant requirement.”).

At oral argument, Pence’s counsel acknowledged that this argument is inconsistent with the supreme court’s pet.

See, appeal docketed (U.S. June 16, 2015)

and that this court “is plainly bound by the Minnesota Supreme Court.” Our supreme court held in Bernard that “a warrantless breath test does not violate the Fourth Amendment because it falls under the search-incident-to-a-valid-arrest exception.” d at 766 (reasoning that the exceptio

Because appellant’s we affirm.

Appellant asks us to disregard the supreme court’s and that we “should decline to follow Bernard, and instead should conclude, under McNeely, that a breath test is a constitutionally unreasonable search.” Minnesota’s Impaired Driving Code criminalizes refusal to submit to alcohol concentration testing “of the person’s blood, breath, or urine.”

After the parties submitted briefs, this court stayed the appeal pending a

1 in which the supreme court recently held that the search-incident-to-arrest exception would have justified the warrantless administration of a breath test following a valid arrest for DWI.

During this time, the district court initially dismissed appellant’s criminal test- refusal charge, concluding that the test-refusal statute was unconstitutional, but it reinstated the charge after Brooks was decided.1 1 Additionally, was decided while this case was on appeal and being briefed.

The Minnesota Supreme Court recently stated that the fact that a search of a person incident to arrest was not related to officer safety or to concerns regarding the destruction of evidence “[did] not compel the conclusion that the search-incident-to-arrest exception [did] not apply.”

held that a warrantless search of a defendant’s breath was permissible as a search incident to arrest.

At oral argument, however

(“Because Bernard bases his due process argument on a Fourth Amendment violation, we turn first to the question of whether a warrantless search of Bernard’s breath would have been constitutional under the Fourth Amendment.”).

In State v. Bernard, the supreme court recently held that “a warrantless breath test does not violate the Fourth Amendment because it falls under the search-incident-to-a- valid-arrest exception.”