Warrant Needed for Blood Test But Not for Breathalyzer

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By Lance J. Rogers

June 23 — Police who arrest a motorist for DUI don't need a warrant before compelling the driver to take a breathalyzer test, but they do need a warrant before they can force the driver to submit to a blood draw, a divided U.S. Supreme Court ruled June 23 in a 5-3 vote ( Birchfield v. North Dakota, 2016 BL 58367, U.S., No. 14-1468, 6/23/16 ).

Anti-drunken driving groups see the decision as a setback in their campaign to get impaired drivers off the roads.

Ralph S. Blackman, the chief executive officer and president of the Foundation for Advancing Alcohol Responsibility, called the decision a “roadblock to fighting drunk and drugged driving” in a statement sent to Bloomberg BNA.

“Striking down criminal penalties for test refusal will result in more refusals, more plea bargains and tougher cases for prosecutors,” Blackman said.

But others characterized the decision as a delicate balancing act between recognizing the need to fight the scourge of drunken driving while at the same time respecting a motorist's Fourth Amendment rights.

“The court split the baby,” Laurie L. Levenson, a former federal prosecutor who is now a professor at Loyola Law School in Los Angeles, told Bloomberg BNA.

Drawing the Line at Blood

Breath tests don't impinge significantly on an arrestee's privacy interests and are a valuable tool that states need to address the “grisly toll on the Nation's roads” caused by intoxicated drivers, the court said in an opinion by Justice Samuel A. Alito Jr.

“The impact of breath tests on privacy is slight, and the need for BAC testing is great,” the court said.

Therefore, police may demand that a motorist submit to a quick breathalyzer test under the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement, the court ruled.

In Chimel v. California, 395 U.S. 752 (1969), the court ruled that concerns about officer safety and the possible destruction of evidence make it reasonable under the Fourth Amendment for police to immediately search an arrestee's person and the immediately surrounding area.

A breath test is neither painful nor difficult and yields no private information, according to the court.

“The effort is no more demanding than blowing up a party balloon,” the court said.

Blood draws, on the other hand, are “significantly more intrusive than blowing into a tube,” it ruled. They involve piercing the skin with a needle, “extracting a part of the subject's body” and giving law enforcement “a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading,” the court added.

Civil Penalties OK

The court made it clear that states may still impose civil penalties and “evidentiary consequences” on motorists under so-called implied-consent laws when drivers refuse to submit to testing. The states just can't impose criminal penalties for refusing to submit to blood draws, it said.

“The court takes care to say ‘we hate drunk drivers' and you can breathalyze them when you arrest them, but if you want to take their blood too, you need a warrant,” Levenson said.

The decision strikes down Minnesota and North Dakota laws that made it illegal for motorists to refuse warrantless blood-alcohol tests after they are arrested for drunken driving.

At least 13 other states have similar laws, according to briefs filed in the matter.

The challengers in the trio of consolidated cases—Danny Birchfield, Michael Beyland and William Bernard—argued that the U.S. Supreme Court's ruling in Missouri v. McNeely, 2013 BL 102042 (U.S. 2013)(93 CrL 92, 4/24/13), which held that there is no blanket exception to the Fourth Amendment's warrant requirement that allows police in every case to take blood from a suspected drunken driver, meant that states couldn't make it a crime to refuse to consent to warrantless search.

Dissents Decry Compromise

Three justices weren't happy with the majority's compromise ruling, but for different reasons.

Justice Clarence Thomas wrote separately, saying he concurred with the breathalyzer conclusion but dissented from the majority's conclusion about blood testing. Thomas called the distinction between breathalyzers and blood withdrawal arbitrary “hairsplitting,” and contended that both tests should be allowed under the exigent-circumstances exception to the warrant requirement.

The natural metabolization of alcohol in the blood creates an exigency once police have probable cause to think a driver is drunk, Thomas said.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, took exactly the opposite stance and filed a concurrence and dissent arguing that police should be required to secure a warrant in both scenarios. Most motorists are taken back to the station to perform a breath test, Sotomayor wrote, and that gives police ample time to secure a warrant.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Elena Kagan joined Alito's majority opinion.

‘No Refusal' Weekends

Blackman said that states should more aggressively implement so-called “No Refusal” programs that streamline the search warrant process by allowing officers to request warrants by phone from on-call judges and magistrates.

The National Highway Traffic Safety Administration has put together a “ No-Refusal Weekend Toolkit” that encourages states to publicize and conduct special crackdowns in which all impaired drivers are tested. The toolkit includes sample search warrant forms and blood withdrawal forms.

During oral argument, the justices doggedly pressed lawyers for Minnesota and North Dakota to address the practical implications and burdens of securing a search warrant by telephone while transporting arrestees to police stations and hospitals (99 CrL 102, 4/27/16).

Charles A. Rothfeld, Mayer Brown LLP, Washington, argued on behalf of Birchfield, Beyland and Bernard. Assistant Dakota County Attorney Kathryn Keena, Hastings, Minn., argued on behalf of Minnesota. Thomas R. McCarthy, Consovoy McCarthy Park PLLC, Arlington, Va., argued on behalf of North Dakota.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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