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US Supreme Court Rules that In DUI Cases, No Warrant Is Needed to Take a Driver’s Breath Sample. However, No Blood Can Be Taken without A Warrant.

June 29, 2016

The landscape of DUI law changes on a daily basis. The US Supreme clarified some outstanding issues in its most recent DUI ruling pertaining to DUI law. In Birchfield v. North Dakota (DUI Law), the court consolidated the appeals of three drivers into one case. The first driver, Birchfield refused to allow his blood to be drawn after an arrest for DUI. He entered a conditional plea of not guilty to the misdemeanor charge of refusing a blood draw so that he could challenge his state’s law criminalizing refusal of DUI blood draws. The second driver Bernard, refused to take a breath test after being arrested for DUI and was charged with the crime of refusing to submit to a breath test. While the trial court dismissed the charges concluding that warrantless breath tests are unconstitutional, the state appealed. The third driver, Beylund, agreed to have his blood drawn after being arrested for DUI and after being advised that refusal of a blood draw was a crime.

The majority opinion concluded that breath tests do not carry the same level of physical intrusions that blood draws do and do not implicate the same privacy concerns. Furthermore, it concluded that requiring police to get warrants for breath tests would swamp the courts. Under the majority’s analysis, any search incident to arrest exception to a valid DUI arrest would encompass breath tests but not blood tests.

The upshot from the ruling is that it is illegal to criminally penalize any driver for refusing to submit to a blood draw after a DUI arrest and before a warrant for blood is executed. However, it is perfectly legal to make it a crime to refuse a breath test. Civil penalties for refusal of either breath or blood tests remain fair game for the states. In the case of these individual drivers, Birchfield’s conviction was reversed, Bernard’s conviction was affirmed, and Beylund’s case was remanded to see if his consent was voluntary even though his consent was predicated on the false premise that he could be criminally prosecuted for not giving it. He still has some work to do.

Interesting, conservative stalwart Justice Thomas dissented as to the distinction the Court made between breath and blood tests. He wrote “The Court justifies its result—an arbitrary line in the sand between blood and breath tests—by balancing the invasiveness of the particular type of search against the government’s reasons for the search.” He did not agree that the two could be differentiated. However, in his view, “both warrantless breath and blood tests are constitutional because “the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.” Thus, while he does not believe a breath test is necessarily any less intrusive than a blood test, he believes evidence of either in a DUI prosecution is admissible under the exigent circumstances exception of the Fourth Amendment, no questions asked. In the end, he maintains adherence to the bright-line rule formulated by prosecutors from Missouri in the McNeely case. The court rejected that rule in favor of a case-by-case analysis examining whether exigent circumstances were present to justify a warrantless BAC search.

DUI laws continue to get tougher and tougher. If nothing else, this should serve as a reminder to not drink and drive.