The Toll of Drunk Driving Justifies Warrantless Breath Tests

Citing the “grisly toll on the Nation’s roads,” and by opinion dated June 23, 2016, the United States Supreme Court has ruled that the police are not required to obtain a warrant in order to obtain a breath sample. The same is not true of blood test where warrants are still required. Fundamental to the Court’s analysis is their finding that breath testing is non-invasive, and can therefore be conducted as a “search incident to arrest.” The name of the case is Birchfield v. North Dakota.

The Court’s opinion begins with a brief history of drunk driving and the evolution of breath testing to its current incarnation – infrared spectroscopy. Included in this history is the fact that the Nation’s first “legal limit” was 0.15%. The legal limit was later dropped to 0.10% and then dropped again to the current National standard of 0.08%.

The Birchfield opinion embraces and discussed three separate but related cases as follows:

Petitioner Danny Birchfield’s case involved an accident, after which Birchfield displayed many of the common symptoms of drunk driving; bloodshot watery eyes, slurred speech, unsteady on his feet, and poor performance on the roadside sobriety tests. He did agree to a roadside breath test, and that test showed 0.254%. Birchfield was arrested, and was subsequently read his implied consent rights. In North Dakota refusing a breath or blood test is a crime separate from but in addition to the underlying drunk driving. Birchfield nevertheless refused to give a blood sample, and was charged with both drunk driving and a test refusal. He plead guilty to the drunk driving, but contested the chemical test refusal charge by entering a conditional plea. Birchfield argued that such a crime was a violation of his Fourth Amendment rights. The North Dakota Supreme Court disagreed, and affirmed his conviction.

Petitioner William Bernard, Jr.’s case arose out of Minnesota. In this case Bernard got his truck stuck in mud, and was arrested based only on red water eyes and the odor of alcohol. He refused all field sobriety tests. He was later read his chemical test rights, and thereafter refused to offer a breath sample for testing. Like North Dakota, Minnesota has criminalized refusals. The trial court found that the warrantless breath test demanded by police was not permitted under the Fourth Amendment. However, the Minnesota’s Supreme Court found that the criminal charge did not violate the Fourth Amendment.

Petitioner Steve Beyland’s case also arose out of North Dakota. Here, Beyland had trouble pulling into a driveway and almost hit a sign. The police arrested him after seeing an empty wine glass in the console of his car, and observing Beyland having trouble with his balance. Beyland was read his chemical test rights, and in this case he consented to a blood test. 0.250%. However, due to the high test result, his license was suspended, and Beyland argued that his consent was coerced by the officer’s statement that if he refused he would be charged with a crime.

These cases are somewhat different from one another, most notably in that two involved a blood test whereas one involves a breath test. As the court’s opinion notes: “[D]espite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.” The court also notes that if a warrant is not required for the breath or blood tests, then there would be no legal impediment to their admission as evidence.

The court begins by examining the “exigent circumstances” except to the Constitution. In this regard, the court concludes by citing the precedent established by the court’s most recent decision on point, where court concluded that the exigent-circumstances exception must be applied on a case-by-case basis, the McNeely Court noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case specific” fashion.[i] The court then goes on to discuss the “search incident to arrest” exception.

A search incident to arrest recognizes that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee’s person. According to the court: One Fourth Amendment historian has observed that, prior to American independence, “[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well.”[ii] Like the discussion relative to exigent circumstances, the court again summarizes various prior opinions addressing the search incident to arrest exception, and likewise, concludes with the most recent as follows: “[A]bsent more precise guidance from the founding era,” the Court wrote, “we generally determine whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”[iii]

The court then considers the impact on breath and blood tests on privacy interests. The court calls the intrusion of breath testing “almost negligible,” with only a minimum of inconvenience. Furthermore, the court indicated that it had previously upheld searches that were more intrusive, such as DNA swabs of a person’s mouth, or the scrapings from beneath a person’s fingernails. Finally, being subjected to a breath test is not inherently embarrassing. For all of these reasons, the court found that a breath test does not implicate significant privacy concerns.

Relative to blood testing, the court found that the act of piercing a person’s skin, and extracting a part of a person’s body was totally different. The taking of blood is therefore significantly more intrusive then asking a person to blow into a tube. Finally, the giving of blood means the police then have possession of something from which more than “just” a blood alcohol level can be determined. Additional information about the person can also be extracted from blood.

After considering the positions of the petitioners and the dissenting justices, the majority writes that:

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

Next, after considering the various differences between breath and blood testing, the court indicates: Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation. Based on all of this, the court finally concluded that a state may not criminalize a refusal to submit to a blood test. Furthermore, as it relates to the criminal sanction for refusal, the court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense,” thereby effectively agreeing with Petitioner Byland’s position.

This opinion has little real impact on the Michigan law of drunk driving. Even if breath testing does not require consent, implied consent advisements will still be required in order for the state to impose driver license sanctions for a refusal of the breath test. Michigan has never criminalized breath or blood test refusals in drunk driving cases, and in Michigan, if a driver refuses either a warrant is almost always obtained.