Hot Bench Questions Attorneys on Alcohol Test Refusal Disputes

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By Jessica DaSilva

April 20 — A heated bench shot rapid-fire questions on practical applications of the warrant requirement in DUI cases to all four attorneys during U.S. Supreme Court oral argument April 20 in a case that will decide whether states may criminalize individuals' refusals to submit to breathalyzer or blood tests.

While arguments touched on Fourth Amendment law, every justice except Justice Clarence Thomas hounded each attorney on the practical implications of creating an exception to the warrant requirement.

The court granted 70 minutes for oral arguments, awarding 35 to the petitioner, 15 minutes to North Dakota, 10 minutes to Minnesota, and 10 minutes to the U.S. government, which filed an amicus curiae brief in the case.

Reneging on a Bargain

“The fundamental problem with the statutes at issue in these three cases is that they make it a criminal offense to assert a constitutional right,” began Charles A. Rothfeld, Washington, arguing on behalf of petitioner Danny Birchfield.

While Rothfeld's opening remark summarized the main theme of his argument, justices seemed preoccupied with drawing similarities between criminal penalties and civil consequences.

Justice Anthony M. Kennedy asked about how criminal penalties differed from revoking a license. Rothfeld answered that it amounted to properly revoking part of the bargain between the state and its drivers. Basically, Rothfeld explained that the state grants drivers' licenses in exchange for drivers' promises to drive safely.

Kennedy asked what if all drivers signed a form expressing that consent as a prerequisite to obtaining drivers' licenses. The need to drive as a means of transportation in North Dakota makes that choice involuntary, Rothfeld argued.

That prompted Chief Justice John G. Roberts Jr. to ask whether Birchfield was making an argument that U.S. citizens enjoy a constitutional right to drive.

No, Rothfeld clarified, but the analysis still hinges on voluntary consent.

Justice Samuel A. Alito Jr. then asked how conditioning a drivers license, which is a government benefit, on the expectation that drivers will not operate their cars drunk is any different than similar cases for revoking benefits to operate trains or aircraft.

Those analyses turned on special needs that accounted for factors like the right to privacy and officers' lack of discretion in executing searches, Rothfeld argued.

Practical Applications

Justice Stephen G. Breyer then engaged in a line of questioning that focused on practicality, asking about how it might affect drivers if the court made an exception for breathalyzers, which are less intrusive than blood tests.

Rothfeld gave a variety of answers that circled around the idea that because courts have always treated breathalyzers a certain way, they should continue treating them that way. None of the answers satisfied Breyer.

“Why?” Breyer asked. “That's really my unknown question: Why? Why? That's why I started with that, because I really don't know the answer.”

Justice Elena Kagan then asked why the court couldn't consider breathalyzers as searches incident to arrest.

That should only apply for people purposefully trying to destroy evidence, Rothfeld argued. That prompted an inquiry from Justice Ruth Bader Ginsburg.

“Why isn't it an affirmative effort to get rid of the evidence because you know the longer the interval passes, the less likely that the test is going to reveal a level that's over the standard amount?” she asked.

Rothfeld argued it was because the individual could not take affirmative action.

An Uncertain Government Interest

Despite receiving a combined 25 minutes for argument, attorneys representing North Dakota and Wyoming faced continuous dogged questions from a bench seemingly unsatisfied with their answers on the practical implications of how the current warrant systems worked and the burdens law enforcement faced.

Both attorneys said they did not know how long it took law enforcement to obtain warrants, why law enforcement faced significant burdens in requesting warrants, whether the states faced an epidemic of releasing drunk drivers, and why their state legislatures could not amend their statutory codes to address what they claimed to be statewide problems.

However, Assistant Dakota County Attorney Kathryn Keena, Hastings, Minn., clarified that most of the tests at issue in the case are conducted at police stations or hospitals after drivers suspected of driving under the influence are taken off the road.

The bench erupted in heated questions, asking Keena why Minnesota law enforcement couldn't call for warrants on the way to either police stations or hospitals if the tests were that necessary. Keena could not provide an answer.

Kagan then asked if the states could receive warrants in a reasonable amount of time, why should the court grant an exception to the warrant requirement.

Keena said the exception would allow states to seek sentencing enhancements in future charges for driving under the influence, which would be more severe than obstruction of justice penalties.

“Why?” balked Justice Sonia Sotomayor. “You change the law. I mean, you know, it's as if you want us to create an exception to the Fourth Amendment—and a very drastic one—to give someone the right to say yea or nay without a warrant, but we don't permit people to say yea or nay when a warrant is present. If they don't comply, they're charged with obstruction, and there will be consequences to obstruction.”

Those charges would not have the same results as driving under the influence enhancements, Keena argued.

“Well, that's because you choose not to penalize obstruction at a higher level,” Sotomayor responded. “That's your choice. We're now creating an exception to the Fourth Amendment because of your choice.”

Keena said Minnesota's position is that warrants aren't necessary.

“Justice Sotomayor is assuming that you're going to lose, so she wants to know what your reaction is to that,” Alito joked to laughter from the courtroom.

“I don't like it,” Keena said. “I don't like it one bit.”

Clarifying Problems

Representing the U.S. in its amicus curiae brief, Deputy Solicitor General Ian H. Gershengorn explained that even law enforcement in large places like the Washington metro area stopped conducting tests based on the unavailability of magistrate judges. He added that states already criminalize behaviors tied to government benefits, which would include a driver's license.

Additionally, Gershengorn said warrants just for driving under the influence offenses in some parts of the country, including metropolitan areas, can take anywhere from 60 to 90 minutes.

Finally, he explained that preliminary roadside breathalyzer test results were not admissible in court, even if drivers declined later tests at police stations or hospitals—making it more difficult to prosecute such offense.

Roberts repeated Sotomayor's point about using obstruction charges where drivers refuse to comply with a warrant.

While that would result in a penalty, Gershengorn explained, that still does not allow law enforcement to get drivers to take those tests that would allow the state to prosecute them for driving-under-the-influence offenses.

On rebuttal, Rothfeld also clarified a point of practice, saying that more states every year are adopting technology that allow for the receipt of electronic warrants in less than 30 minutes. Creating an exception under the current landscape would be premature, he explained.

To contact the reporter on this story: Jessica DaSilva at

To contact the editor responsible for this story: C. Reilly Larson at

For More Information

The transcript is available at