Fourth Amendment

May States Impose Criminal Penalties on Suspected Drunk Drivers Who Refuse to Submit to Warrantless Blood Tests? SCOTUS Will Soon Decide

The Supreme Court agrees to hear three new cases dealing with drunk driving suspects and the Fourth Amendment.


Credit: Library of Congress

In 2013 the U.S. Supreme Court held that police officers in Missouri violated the Fourth Amendment when they obtained a warrantless and nonconsensual blood sample from a man suspected of drunk driving. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search," Justice Sonia Sotomayor wrote for the majority in Missouri v. McNeely, "the Fourth Amendment mandates that they do so."

It was a significant defeat for law enforcement. But Justice Sotomayor also poined out that it was not a total defeat. "States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC [blood alcohol concentration] evidence without undertaking warrantless nonconsensual blood draws," she observed. "For example, all 50 states have adopted implied consent laws that 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."

But that observation by Sotomayor also raised some constitutional questions of its own. For instance, what if a state makes it a crime for a suspected drunk driver to refuse to submit to a warrantless blood test? Does the Fourth Amendment offer any protection to the refuseniks?

Such questions are no longer academic. On Friday the U.S. Supreme Court agreed to hear three consolidated cases that present the following question: "Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person's blood."

Two of the three cases come out of North Dakota, where the North Dakota Supreme Court has upheld the constitutionality of state laws imposing such criminal penalties. In the first case, Beylund v. Levi, a man was arrested on suspicion of drunk driving and taken to the hospital by police, where he submitted to a blood test, which was later used to help convict him. The man now maintains that his actions were not truly voluntary since the law coerced him into compliance by placing an unconstitutional condition upon him.

In the second case, Birchfield v. North Dakota, a man was arrested on suspicion of drunk driving but refused to submit to the chemical test. He maintains that the state cannot criminalize his refusal without running afoul of the Fourth Amendment.

The third case the Court agreed to hear, which will be consolidated with the previous two, comes out of Minnesota. Here a man was arrested on suspicion of drunk driving, taken to the police station, and asked to submit to a breath test. He said no, thereby triggering the state law which criminalizes such refusals. "Because we conclude that the breath test the police asked Bernard to take would have been constitutional as a search incident to a valid arrest," the Minnesota Supreme Court held in Minnesota v. Bernard, "charging Bernard with criminal test refusal does not implicate a fundamental right." Not surprisingly, Bernard disagrees. Perhaps a majority of SCOTUS will too.

Oral arguments in Beylund v. Levi, Birchfield v. North Dakota, and Bernard v. Minnesota have not yet been scheduled.

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  1. Uh oh… MADD is going to be mad!

  2. I’m probably drawing too fine a distinction here, but I think I’d find for the defendants in the first two cases, but not the third. It sounds like the government does have the authority to search you without a warrant after you’re arrested (I could be wrong here. If so, please let me know). But, until such time as you’re arrested, it seems like any attempt to criminalize refusing a warrantless search makes a mockery of the demand that searches be conducted with a warrant.

    1. They only have the authority to search you for weapons and for the safety of the police. It is called a search incident to arrest and it doesn’t extend to drawing blood. For example, if you are in jail and the police want to take a blood sample to link you to another crime, they still have to get a warrant.

      1. Thanks for the heads up here. That does make sense.

      2. For what it is worth I was going off of Sotomayor’s comments. I’d kind of hope she’d know the Constitution.

    2. You’re basically saying that, post-arrest, the police have unlimited power to X-ray, CAT-scan, blood draw, and DNA test you while you remain in custody in order to find evidence of the crime they arrested you for in the first place.

    3. The only reason you may be searched after an arrest, if I remember correctly, is to prevent the smuggling of contraband or weapons into the jail; for safety. That is what the cop crowd argued and what the courts agreed to. I have a hard time reconciling that with searching someone’s breath or bodily fluids. One cannot be compelled to give evidence against themselves even after arrest.

      1. One cannot be compelled to give evidence against themselves even after arrest.

        Or after being indicted or formally charged.

        As I say below, I’d argue that compelling someone to give up a piece of their body (e.g. for a blood or DNA test) is the same as compelling someone to testify against himself and should be forbidden under the 5th.

  3. For instance, what if a state makes it a crime for a suspected drunk driver to refuse to submit to a warrantless blood test?

    What if a state makes it a crime for a suspected drug dealer to refuse to submit to a warrantless house search?

    “. . . where police officers can reasonably obtain a warrant . . . without significantly undermining the efficacy of the search . . . “

    This . . . this is just insane. She’s basically saying that the 4th amendment only applies when it won’t ‘significantly undermine’ a search.

    1. You only have a right against search and seizure in cases where it doesn’t make any difference. Thanks a lot.

    2. Exactly.

      The states are all trying to get around the difficulty of prosecuting someone for reckless driving by charging with a completely unrelated “crime” of driving while intoxicated. The automatic implication that intoxication = recklessness is absurd yet “legal”. And it’s only intoxication from select substances – any sociopath taxing subscription Paxil while blabbing on a hands-free phone is a-OK to drive “legally”. But God forbid someone have a glass of wine – the clerics will equate you with the devil.

    3. Sort of surprising thing for her to say. She’s usually quite good when it comes to 4th Amendment matters. I’m hoping that sentence was a compromise to get another vote.

  4. I will just leave this here.

    When thinking about this case and what is left of the rule of law in this country, consider this. Lois Lerner took the 5th Amendment before Congress. The reason why Congress could not fire her or take away her pension was that the Supreme Court ruled back in the 1940s that threatening a government employee with being fired if they invoked their 5th Amendment right to remain silent violated their 5th Amendment rights.

    If the government wins this case, government employees will be free to refuse to testify before investigations into their own malfeasance without any worry of negative consequence but anyone who asserts their 4th Amendment rights against unlawful search and seizure at a DUI stop will be guilty of a crime.

    1. As it should be.

      Now, shut up and eat your broccoli.

      1. I’d eat it if I could afford broccoli, but this penaltax I have to pay because I couldn’t afford insurance is putting a strain on the grocery budget.

    2. That’s a good point. I might go so far as to say that criminalizing refusal to get your blood tested is a violation of the 5th amendment right against self incrimination.

      1. And what about a 1040 form?

        1. That one’s a bit more of a tough call, but I’d come down against that as well. The biggest thing that has convinced me to completely oppose income tax is the huge invasion of privacy that it requires.

          1. It really is every single bit of your personal information in great detail.

            If we’re going to live in a tax-funded society, a sales tax is the only decent approach.

  5. I’m always a bit surprised (maybe “surprised” isn’t the right word. “Disgusted” might be better) that it’s OK to force someone to have their bodily integrity violated for a blood draw, cavity search or DNA test even with a warrant. “Probable cause” just doesn’t seem like enough for that level of invasiveness.

    1. What if it’s to protect the children? You monster.

  6. I sense a FYTW-style ruling coming.

    1. Particularly with them combining cases where 2 of the searches are dicey, but the third, in my estimation is a bit fuzzier.

      An argument can be made that they aren’t collecting anything via breathalyzer that you aren’t already going to be getting rid of in the natural course of breathing. They’re just concentrating what you’re already exhaling in order to get a more accurate reading. Were you to spit or hike on the side of the road they could analyze that. I don’t see how your exhaled breath is different.

      Drawing blood is altogether different.

      1. Using a breathalyzer to measure the blood alcohol content is a faulty premise. People’s BAC vary greatly compared to their breathalyzer measurements. There are two many factors that can influence the results in a breathalyzer. DUI/DWI, texting and driving, etc are all stupid laws that should be unenforceable. The law that should be enforced and perhaps have more severe penalties is reckless and imprudent driving. It covers all of them, and it can be observed without having to discern the cause.

  7. Personal OT: There are three engineers behind me, right now, discussing circumcision.

    1. If that’s not a microaggression…

    2. How many engineers does it take to screw in a light bulb?
      answer: 1, it only takes one engineer to screw anything up

  8. implied consent laws are not the same as criminalizing non submission to a warrantless blood test.

    they are not criminal. they are actually DMV rules, not criminal law. you agree to submit to a BAC test on demand any time you are driving on a public road. failure to comply can get your license revoked, but it s not a criminal issue.

    this works because driving on a public road is a privilege, not a right.

    to try to extrapolate from that to anything criminal is simply not valid. it is, indeed, correct that without a warrant, no peace officer can forcibly take your blood.

    this is why most DMV’s set the penalty for failure to submit as a license suspension far longer than a dui would be.

    most states have a 3-4 month dui suspension. failure to submit is a 12-18 month license suspension by the DMV.

    you can even get double whammied if you refuse, then they get a warrant and take you blood anyhow.

    1. Moving violations are not criminal acts, but DUI is not classified as a moving violation, it is a crime.

    2. I’d call driving a right, logically extended from our right to freely travel upon public right of ways in the manner for which they were designed.

      The only problem is that government entities have long claimed it to be a privilege, and a good portion of the public have willingly accepted it as such.

      1. SCOTUS has alluded to that very fact in previous rulings. It is the states that hold that driving is a privilege. There just hasn’t been a significant enough reaction by the people to change things. The case that will bust this out will be one that demonstrates that a drivers license has nothing to do with driving, but everything to do with back door creation of a domestic travel passport of sorts. Something that is unconstitutional.

  9. “Search incidental to an arrest”? Are you fucking kidding me?!?! If taking your blood is a valid incidental search to your arrest for (allegedly) driving drunk, then the state literally has the power to take ANYTHING of yours if you’re arrested as long as the (alleged) crime is somehow related to the thing it is taking.

    … oh, wait.

  10. Sounds like a pretty solid plan to me dude. Wow.

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