The Supreme Court heard oral argument last week in the case of Birchfield v. North Dakota. This case was consolidated and argued with two other cases, Bernard v. Minnesota and Beylund v. Levi. The cases asked the court to address whether or not a state can impose criminal penalties on a person if he or she refuses to take a warrantless chemical test, such as a blood, breath, or urine test. Currently, thirteen states have such laws in place. In addition to Minnesota and North Dakota, ten other states also criminalize refusal to submit to a warrantless chemical test. Hawaii has a similar law, but the Hawaiian Supreme Court declared that law unconstitutional last year.
The three cases all deal with a similar issue but the facts underlying each case differ somewhat. In Birchfield, the defendant was stopped on suspicion of driving under the influence and subsequently he refused to take a blood test. In Bernard, the defendant refused to take a breath test after police suspected he was intoxicated. In Beylund, the defendant consented to the blood test after he was informed he would face criminal penalties for refusing to do so. The petitioners - Beylund, Bernard, and Birchfield - contend that making it a crime to refuse a warrantless chemical test is unconstitutional under the Fourth Amendment. The states in the case - Minnesota and North Dakota - argue the opposite, that the criminal sanctions are permissible.
At oral argument, the Justices peppered both petitioners and respondents with questions. The Justices noted that in many states there is a civil penalty for refusing to take a chemical test, often the suspension of the defendant's driver's license for a period of time. The Justices also looked at whether or not requiring suspected drunk drivers to submit to a chemical test without a warrant would fall into one of the exceptions to the Fourth Amendment such as the "special needs" exception or the search incident to arrest exception.
The Court also remarked on the differences between breath and blood tests, with many of the Justices stating that the breath test was not very intrusive. One of the attorneys for the petitioners, Charles Rothfeld, argued that the breath test was invasive. He stated: "You're inserting a tube into a person's mouth to get them to expel something from deep within their body so that it can be tested by the government."
The Justices then looked at the level of difficulty that law enforcement personnel would have in obtaining a warrant. The Court noted that Wisconsin and Montana, which are similar to the states in the case, both had quick methods of obtaining warrants. The Justices asked if a police officer could obtain a warrant quickly like during the drive to the police station or hospital. The Attorneys for Respondents argued that they didn't have the sort of instant warrant system that other states had. Justice Sotomayor stated that this would not excuse them from meeting a constitutional requirement. Justice Kennedy stated on this point that modern technology allows "some States, both sparsely populated and heavily populated, to get a warrant in 15 minutes."
Based on the oral argument, it seems that the Justices are likely going to require a warrant for blood tests, because of the invasive nature of the test. Whether or not the Justices decide that a warrant will also be needed to conduct a breath test is less clear. Based on their remarks, and that fact that many breath tests are done at police stations as opposed to the side of the road, it is possible that the Court will decide a warrant is required. However, the Court may also find that a breath test falls into one of the Fourth Amendment exceptions and therefore no warrant is required.
The Court's decision will be released in the coming months. To follow the case, click here. If you find yourself needing a DUI attorney for any reason including your refusal to take a warrantless chemical test, such as a blood, breath, or urine test, please contact the law office of Aaron Wolff at (425) 284-2000 or contact him online.