ALTHOUGH WARRANTLESS BLOOD TESTS ARE UNCONSTITUTIONAL, WARRANTLESS BREATH TESTS ARE STILL PERMITTED
This past week, the U.S. Supreme Court decided three separate but related cases consolidated in the matter of Birchfield v. North Dakota, relating to the issue of whether the State must first obtain a warrant before obtaining a breath or blood sample from a defendant arrested for DUI and whether, based on that same issue, a defendant’s refusal to submit to a request for blood or breath test is unconstitutionally coerced.
The Court held that although the Fourth Amendment permits warrantless breath tests incident to an arrest for DUI, warrantless blood tests are unconstitutional. Accordingly, a defendant cannot be convicted of a crime or otherwise penalized for refusing to take a warrantless blood test to measure the alcohol in their bloodstream.
This decision will, no doubt, have a great impact on pending and future DUI prosecutions in the Commonwealth of Pennsylvania and across the U.S. It may also affect the ability of the Commonwealth of Pennsylvania to impose sanctions on driver’s who are facing consequences of having refused to submit to a warrantless request for a blood test after being arrested for DUI.
Birchfield was arrested for DUI. The state trooper who arrested him advised him of his obligation under North Dakota law to undergo blood alcohol concentration (“BAC”) testing and told him, as state law requires, that refusing to submit to a blood test could lead to criminal punishment. Birchfield refused to let his blood be drawn and was charged with a misdemeanor violation of the refusal statute. He entered a conditional guilty plea but argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected his argument, and the State Supreme Court affirmed.
Bernard was arrested for DUI. Minnesota police transported him to the station after his arrest where they read him Minnesota’s implied consent advisory. Like North Dakota’s advisory, it informs motorists that it is a crime to refuse to submit to a BAC test. Bernard refused to take a breath test and was charged with test refusal in the first degree. The Minnesota District Court dismissed the charges, concluding that the warrantless breath test was not permitted under the Fourth Amendment. The State Court of Appeals reversed, and the State Supreme Court affirmed.
Beylund was also arrested for DUI. He was taken to a nearby hospital where the officer read him North Dakota’s implied consent advisory, informing him that test refusal in these circumstances is itself a crime. Beylund agreed to have his blood drawn. The test revealed a BAC level more than three times the legal limit. Beylund’s license was suspended for two years after ainistrative hearing, and on appeal, the State District Court rejected his argument that his consent to the blood test was coerced by the officer’s warning. The State Supreme Court affirmed.
The Supreme Court granted certiorari in all three cases and consolidated them for argument in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream.
The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.
As applied to Birchfield:
Birchfield was criminally prosecuted for refusing a warrantless blood draw and, therefore, the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. Accordingly, because the Supreme Court concluded that Birchfield was threatened with an unlawful search. His conviction was reversed.
As applied to Bernard:
Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. His conviction was upheld.
As applied to Beylund:
Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Voluntariness of consent to a search must be determined from the totality of all the circumstances. Therefore, the Supreme Court remanded the case to the State Court for further proceedings to reevaluate Beylund’s consent.
The Supreme Court’s analysis began with restating that the taking a blood sample or administering a breath test is a search governed by the Fourth Amendment and acknowledging that such searches may nevertheless be exempt from the warrant requirement if they fall within an exception for searches conducted incident to a lawful arrest. However, the Court expressly recognized that the “founding era guidance was lacking” in situations that could not have been envisioned by the authors of the Constitution when the Fourth Amendment was adopted. For example, the Court referenced the use of cell phone technology analyzed in an earlier case as an example and noted that the use of technology to determine blood alcohol concentration also fell into this category.
Within this framework, the Court determined that in order to determine whether to exempt a particular search from the warrant requirement, it must assess, on the one hand, the degree to which the search intrudes upon an individual’s privacy and, on the other, the degree to which that particular search is needed for the promotion of legitimate governmental interests.
Accordingly, the Court set out to evaluate the governmental interests involved and the respective degrees of intrusion visited upon an individual’s privacy as it relates to breath tests and blood tests to determine the BAC in a given individual, incident to arrest for DUI.
As to the governmental interest involved, the Court recognized that government has a legitimate interest in preserving public safety and a compelling interest to create a deterrent to drunken driving in general as well as a specific interest in obtaining and preserving the BAC evidence in any particular DUI case.
As to breath testing, the Court considered the actual invasiveness and inconvenience associated with such tests, concluding that breath tests do not implicate privacy concerns that outweighed the government’s interest at issue. The Court noted that the actual physical intrusion does not add to the embarrassment already associated with the arrest and that it is almost negligible, typically requiring an arrestee to simply insert the machine’s mouthpiece into his or her mouth and to exhale. Interestingly, the Court also noted that the information obtained by the test itself only reveals a BAC reading and leaves no biological sample, e.g. – the defendant’s DNA, in the government’s possession.
To summarize, because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.
As to blood testing, when the Court considered the actual invasiveness and inconvenience associated with such tests, i.e. – piercing the skin and extracting a part of the subject’s body, it concluded that such tests are significantly more intrusive than blowing into a tube. Additionally, the Court noted that the information obtained by a blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information, i.e. – the defendant’s DNA, beyond a simple BAC reading, causing anxiety for the person tested.
Noting that blood tests are significantly more intrusive, the Court found that their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. The Court further noted that the Respondents offered no satisfactory justification for demanding the more intrusive alternative without a warrant, leaving open the possibility that such justifications may be developed in later cases. And, in instances where blood tests might be preferable—e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious, the Court concluded that nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Again, this leaves open the possibility that future prosecutions may very well allege that there was a suspicion that the defendant was under the influence of a substance other than alcohol in order to circumvent the warrant requirement.
To summarize, because blood tests are significantly more intrusive than breath tests, they may not be administered as a search incident to a lawful arrest for drunk driving. A warrant is needed in this situation.
The Court also analyzed the constitutional impact of a defendant’s refusal when confronted with a request by a law enforcement officer incident to a DUI arrest.
The Court first noted that motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. The Court explained that although it may be proper for the State to approve implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, it is quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit.
Noting that there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads, the Court – in the cases under consideration – was addressing statutory schemes that specifically criminalized the refusal itself. In Pennsylvania, for example, it is not a crime, in and of itself, to refuse to submit to a chemical test. However, such a refusal in PA subjects any defendant – automatically – to enhanced criminal penalties. Since the Birchfield Court noted that they were deciding the issue of “whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream,” the Court has provided – if not a specific holding – guidance and grounds for a persuasive argument that the holding in Birchfield applies to the Pennsylvania statutory scheme as well.
To summarize, the impact of the Court’s ruling for states that have criminalized the actual refusal is clear: Because the search that the defendant refused cannot be justified as a constitutional search incident to his arrest or on the basis of implied consent, the defendant who has refused such a request cannot be lawfully convicted for that refusal.
LINK TO CASE:
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