Supreme Court: States May Impose Criminal Penalties for Refusal of Breath Tests, but Not Refusal of Blood Tests
In a decision authored by Justice Alito last week, the Supreme Court found that laws imposing criminal penalties for refusal to take a breath test do not violate the Fourth Amendment’s ban on unreasonable searches, but that criminal penalties for refusal to take a blood test do.
In the first of three cases consolidated by the Supreme Court regarding the constitutionality of refusal statutes, a state trooper witnessed Danny Birchfield drive his car off a North Dakota highway. After Birchfield performed poorly on each field sobriety test conducted by the trooper, the trooper informed Birchfield that he has an obligation under state law to agree to a blood alcohol concentration (BAC) test. Birchfield took a roadside breath test, which estimated that his BAC was 0.254%, over three times the legal limit. The trooper arrested Birchfield and advised him that refusing to take a blood test would expose him to criminal penalties. Birchfield refused to let his blood be drawn.
Birchfield pled guilty to a misdemeanor violation of the refusal statute, but argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the blood test. A North Dakota district court rejected his argument and imposed a sentence. On appeal, the North Dakota Supreme Court affirmed.
In the second case, Minnesota police arrived at a boat launch, where there were three intoxicated men who got their truck stuck in the river while attempting to pull their boat out of the water. Witnesses described William Robert Bernard, Jr. as the driver. Upon the officers’ request, Bernard refused to perform any field sobriety tests and the officers arrested Bernard for driving while impaired. At the station, the officers read Bernard Minnesota’s implied consent advisory, which informs motorists that it is a crime to refuse to submit to a legally required BAC test. Bernard refused to take the breath test.
After being charged under the state law, the Minnesota district court dismissed the charges on the ground that the warrantless breath test was not permitted under the Fourth Amendment. The Minnesota Court of Appeals reversed, and the State Supreme Court affirmed that judgment on appeal.
In the third case, a police officer witnessed Steve Michael Beylund attempt to turn into a driveway and almost hit a stop sign in the process. The officer noticed an empty wine glass in the car and smelled alcohol on Beylund’s breath. The officer arrested Beylund for driving while impaired and took him to a nearby hospital, where he read Beylund North Dakota’s implied consent advisory. Beylund agreed to have his blood drawn and analyzed. A nurse took a blood sample, revealing a BAC of 0.250%, over three times the legal limit.
Beylund’s driver’s license was suspended after an administrative hearing. Beylund appealed the hearing officer’s decision to a North Dakota district court, arguing that his consent to the blood test was coerced by the officer’s warning that refusing to consent would be a crime. The district court rejected this argument. On appeal, the North Dakota Supreme Court affirmed.
The Supreme Court began by explaining that BAC testing is a search under the Fourth Amendment, for which a warrant is required absent an exception. Accordingly, the Court analyzed whether the warrantless searches in the three consolidated cases fit within one of the exceptions to the Fourth Amendment warrant requirement. Because the three motorists were searched after being placed under arrest for drunk driving, the Court needed to determine whether the search-incident-to-arrest doctrine applies. To make this determination, the Court focused on the degree to which breath and blood tests intrude upon an individual’s privacy and the degree to which they are needed for the promotion of legitimate government interests.
The Court first considered the impact of breath and blood tests on individual privacy interests. The Court concluded that breath tests do not implicate significant privacy concerns. To support this conclusion, the Court stated that the physical intrusion of a breath test is “almost negligible.” The Court also stated that there is no possessory interest in the air humans exhale. Further, the Court noted that breath tests reveal a limited piece of information – the amount of alcohol in the subject’s breath. The Court then noted that the risk of embarrassment is low. As such, the Court held that breath tests do not implicate significant privacy concerns.
On the other hand, the Court determined that blood tests do implicate significant privacy concerns because blood tests are significantly more intrusive than breath tests. The Court stated that a blood test requires piercing the skin to extract a part of the subject’s body instead of blowing into a tube. The Court also explained that while humans exhale air from their lungs, they do not continually shed blood. In addition, the Court considered that a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. According to the Court, there is also a greater potential for anxiety when an individual is subjected to a blood test.
The Court then considered the states’ asserted need to obtain BAC readings for persons arrested for drunk driving. The states and the federal government have a “paramount interest” in preserving the safety of public highways. Because alcohol consumption is a leading cause of traffic fatalities and injuries, the states and federal government have taken steps to curb this effect. The laws at issue make it a crime to refuse to submit to a BAC test in order to curb drunk driving. Thus, the Court found that the refusal laws serve a “very important” function.
Having assessed the effect of BAC tests on privacy interests and the need for such tests, the Court held that the Fourth Amendment permits warrantless breath tests incident-to-arrest for drunk driving. However, the Court reached a different conclusion regarding blood tests, determining that the Fourth Amendment does not permit warrantless blood tests incident-to-arrest for drunk driving as they are “significantly more intrusive” than the breath test.
The Court then applied its legal conclusions to the three cases before it. The Court first concluded that Birchfield, who refused a warrantless blood draw, was threatened with an unlawful search and therefore reversed the judgment affirming his conviction under the refusal statute. Next, the Court ruled that Bernard refused a warrantless breath test, which was a permissible search incident to arrest for drunk driving, and therefore, affirmed his conviction. Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to and failed a blood test after police told him that the refusal law required his submission. Because the voluntariness of consent to a search must be determined by a totality of the circumstances, the Court remanded this issue to the state court.
Justices Roberts, Kennedy, Breyer, and Kagan joined in the opinion of the Court. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Ginsburg joined. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.
Read the full case: Birchfield v. North Dakota
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.