In April I wrote about a case, Birchfield v. North Dakota, that was before the United State Supreme Court. The case dealt with whether or not a state could impose criminal penalties for refusing to take a chemical test without a warrant. Birchfield was consolidated with two other cases, Bernard v. Minnesota and Beylund v. Levi, as they all dealt with the same issue. The court was called upon to decide if the search penalties violated a person's Fourth Amendment rights.

Justice Alito delivered the opinion of the court. He was joined by Justices Kennedy, Roberts, Kagan, and Breyer.

All states have implied consent laws which were enacted to secure cooperation with BAC testing from those suspected of driving under the influence. These laws "require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.”

Most states have administrative penalties if a driver refuses such as "suspension or revocation of the motorist's driver's license" and the prosecution can use "evidence of the motorist's refusal" as " evidence of likely intoxication" at trial. Even with these penalties, drivers still refuse to take any type of BAC tests. The court stated that "[o]n average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so." Because of this lack of cooperation from motorists, some states have chosen to enact criminal penalties for refusal including the two respondents in these cases, North Dakota and Minnesota.

The court stated that breath and blood tests are considered to be searches under the Fourth Amendment. The usual requirement when conducting a search is to get a warrant. However, there are exceptions to this rule such as exigent circumstances and searches incident to arrest. In deciding if a warrant was needed for breath and blood tests the court used analysis from Riley v. California. It looked at "'the degree to which [blood and breath tests] intrud[e] upon an individual's privacy and. . . the degree to which [the tests are] needed for the promotion of legitimate governmental interests.'"

The court looked first at the breath test and what privacy interests this test may implicate. The court stated "the physical intrusion is almost negligible" and that no more effort is required to give a breath sample then to "blow up a party balloon." The court was not persuaded that by the test's use of a sample of deep lung air, writing that "[h]umans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs" and "all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test." The court pointed out it has "upheld warrantless searches involving physical intrusions that were at least as signifi­cant as that entailed in the administration of a breath test" such as a cheek swab and a fingernail scraping. In addition, breath tests are only used to determine alcohol levels and don't reveal any other personal information and are unlikely to "cause any great enhancement in the embarrassment that is inherent in any arrest."

However, the court had a different opinion on blood tests. The court stated that blood test "'require pierc­ing the skin' and extract a part of the subject's body." In addition to being "significantly more intrusive than blowing into a tube" the court noted that " a blood 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."

Thus, the court has accorded the two of the common ways to test BAC levels different levels of intrusion. Breath tests are not invasive and blood tests are. To find out how the court ruled in this case, be sure to read Part 2 of this blog. 

To read my earlier post on the oral argument, in this case, click here.