Supreme Court Upholds Warrantless Breath Tests and Limits Penalties for Blood Test Refusals
In Birchfield v. North Dakota, 579 U.S. __ (June 23, 2016), the United States Supreme Court held warrantless breath tests incident to arrest for drunk driving constitutional, but found warrantless blood tests unconstitutional. The Court also held that, despite the existence of implied consent laws in all States, criminal penalties cannot be imposed against drivers who refuse to submit to a blood test.
This case is the consolidation of three separate state matters, all involving defendants arrested for drunk driving. Defendant Danny Birchfield refused to submit to a blood test. Birchfield was charged with misdemeanor refusal and entered a conditional plea. His argument that criminal refusal penalties are prohibited by the Fourth Amendment was rejected throughout the state courts. After being arrested, William Bernard was advised of Minnesota’s implied consent law, including the fact that refusal to submit to breath testing is a criminal offense. The district court dismissed the charges against Bernard on the grounds that warrantless breath testing was not permitted by the Fourth Amendment, though the district court decision was reversed by the court of appeals and the affirmed by the Minnesota Supreme Court. Defendant Steve Beylund was given the informed consent advisory after his arrest. He agreed to have his blood tested, but later argued his consent was coerced because the officer’s warning advised him that refusal to consent to the blood test could have criminal repercussions. This argument was rejected by the North Dakota courts.
Providing the background for its decision, the Court first discussed the need for drunk driving laws, as well as the methodologies available for testing blood alcohol concentration. It also described the history of implied consent laws nationwide as well as the evolution of laws to combat and deter test refusals. After laying this groundwork, the Court established a very clear delineation between breath and blood testing for BAC, holding the Fourth Amendment permits warrantless breath testing incident to arrest for drunk driving, but not warrantless blood testing. Under the well-established search-incident-to-arrest doctrine, arrest alone justifies search of person. However, there was no definitive guidance on whether blood or breath tests should be allowed incident to arrest. As a result, the Court considered the respective privacy impacts of such tests. Breath tests, on the one hand, require only negligible physical intrusion and the arrested party is simply expelling into the mouthpiece air that he or she would ultimately exhale at some point in the future. Further, breath tests provide only a BAC reading, leaving no DNA or other biological information in the possession of the government. A blood test, on the other hand, requires piercing of the skin and extraction a part of the arrestee’s body. The resulting sample can be preserved and law enforcement could later extract information well beyond a BAC level.
The Court then evaluated the States’ need to obtain BAC readings. The States have a “paramount” interest in protecting public safety by deterring drunk driving. By imposing severe penalties for refusal, States incentivize cooperation in BAC testing. Further, imposition of a warrant requirement for every BAC test further overburdens courts, particularly in more rural areas.
Based on the minimal privacy impact of breath tests as compared to the substantial need for BAC testing, the Court found the Fourth Amendment allows for warrantless breath tests incident to arrest for drunk driving. In contrast, however, the Court found the States failed to provide a sufficient justification for requiring the more intrusive blood testing without a warrant. Nonetheless, the Court noted that law enforcement retains the ability to obtain a warrant or rely upon the exigent circumstances exception to obtain blood testing without a warrant when appropriate, as discussed in the Court’s decision in Missouri v. McNeely, 113 S. Ct. 1552, 569 U.S. __ (2013).
With respect to the application of the implied consent laws and evaluation of refusal penalties, the Court found “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of decision to drive on public roads.” Id. at __ (slip op. at 36). Drivers may only consent to “reasonable” conditions with a “nexus” to the privilege of driving and bearing penalties that are proportional to the violation. Id. at __ (slip op. at 37). Applying this standard, adopted from Fifth Amendment jurisprudence, the Court found drivers cannot be found to have consented to blood testing under threat of criminal penalties.
The three underlying cases were disposed of in accordance with the Court’s decision.
The majority opinion was authored by Justice Alito. Justice Sotomayor drafted an opinion, concurring in part and dissenting in part, which was joined by Justice Ginsburg. This opinion dissented from the majority on the grounds that, like blood testing, breath testing should also require a warrant. A warrant is required only in cases where the arrestee refuses, which occurs a minority of the time, and the opinion posits that adequate time and resources are available to obtain a search warrant in such cases. Justice Thomas concurred in part and dissented in part, arguing, as he did in McNeely, that warrants should be not required for breath or blood testing incident to arrest for drunk driving. Justice Thomas promoted the position that the dissipation of alcohol from the blood stream provides the basis for a per se rule that the exigent circumstances exception to the warrant requirement applies in all drunk driving arrests once probable cause is established.
The majority’s decision provides seemingly clear instruction on the appropriate approach to pursuing BAC testing when a driver refuses. Those municipalities and law enforcement agencies regularly utilizing blood testing will need to ensure that their policies and approach to dealing with refusals comply with the warrant or warrant exception parameters outlined in Birchfield. Wisconsin law does not criminalize refusal, and therefore, this decision is unlikely to affect refusal penalties in our state.
