Supreme Court

Today at SCOTUS: Warrantless Drunk Driving Tests and the Fourth Amendment

Supreme Court weighs constitutional rights against law enforcement powers.


Credit: Phil Roeder / / CC-BY

Today the U.S. Supreme Court will hear oral argument in three consolidated cases that pose 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."

At issue in the consolidated cases of Birchfield v. North Dakota, Beylund v. Levi, and Bernard v. Minnesota, are state laws from North Dakota and Minnesota that impose criminal penalties on suspected drunk drivers who refuse to submit to warrantless chemical DUI tests. According to North Dakota, the state has a legitimate interest in combatting drunk driving and that legitimate interest "far outweigh[s] the limited interference with an arrestee's right to require the police to secure a warrant before conducting the search. The right to demand that police secure a warrant here is at the periphery of the Fourth Amendment." Minnesota offers a related argument, telling the Court that its law "is constitutional as applied to breath tests because a warrantless breath test administered to a suspect lawfully arrested for drunk driving would be permissible pursuant to the search incident to arrest doctrine."

The arrested parties in these cases offer a different view. Danny Birchfield, for example, is a North Dakota man arrested on suspicion of drunk driving who refused to submit to a warrantless chemical test. He was charged for his refusal and sentenced under the refusal statute. Birchfield maintains that the state law imposed an unconstitutional condition upon him, forcing him to either sacrifice his constitutional right to be free from a warrantless search under the Fourth Amendment or else face criminal sanctions. Birchfield and his lawyers therefore urge the Supreme Court to reject "the extraordinary proposition that persons may be subjected to criminal penalties for asserting their constitutional right to resist a search that is not supported by a warrant or an exception to the warrant requirement."

William Bernard of Minnesota offers a related argument. In his case, he was arrested on suspicion of drunk driving, taken to the police station, and asked to submit to a breath test. He said no, thus triggering the state law criminalizing such refusals. The Minnesota Supreme Court eventually upheld the state law, arguing that the police may impose warrantless breath tests on suspects like Bernard incident to their arrests. Yet as Bernard and his lawyers point out, the classic justifications for the search incident to arrest doctrine center on officer safety and preventing the destruction of evidence. This stems from the idea that the police need to secure the scene for weapons and evidence and can't always wait around safely for a warrant before doing so. "Because a breath test is not administered to further officer safety or to preserve evidence," Bernard and his lawyers point out, "it is not a valid search incident to arrest."

Today's three consolidated cases therefore raise significant questions about both the scope of the Fourth Amendment and its impact on the use of aggressive law enforcement tactics.

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  1. If the state interest is that great, have a rubber stamp judge on call to issue warrants. Stop tossing out constitutional rights for the convenience of law enforcement.

    1. If we can toss out constitutional rights for the convenience of legislators, school administrators, and the perpetually offended, why the hell not law enforcement?

      You are not a reasonable person.

  2. “Because a breath test is not administered to further officer safety or to preserve evidence,” Bernard and his lawyers point out, “it is not a valid search incident to arrest.”

    Prediction: The Court will rule that breath tests preserve evidence before it is metabolized out of the suspect’s system.

    1. Sadly, you are probably right. They will find that there is no “reasonable expectation of privacy” to your breath when driving thus no warrant is needed. If they don’t need a warrant, they can order you to do it.

      I wish and hope we are wrong but I doubt it. It will be another example of how the “reasonable expectation of privacy” doctrine basically means “the government doesn’t want anything you might be hiding in this case”. It is appalling.

    2. That’s actually a reasonable argument and the first one that occurred to me.

      1. I’ve often wondered how that is not protected by ones 5th amendment right to not self incriminate.

        1. It is not considered “testimonial”. Your physical characteristic are not considered testimonial. It is who you are. So the 5th Amendment doesn’t apply. This is no different than the cops taking your DNA or putting you in a witness lineup.

      2. You can search a home without a warrant if there are exigent circumstances. The possibility of evidence being destroyed creates such circumstances. This and their safety is why the cops can search people who are arrested without a warrant. The problem is that it can quickly become an exception that swallows the rule requiring warrants.

        It is a reasonable argument to say that getting a warrant might be impossible before the alcohol is out of your system. The problem is that this test was done at the police station. The police are saying “there is no time” such that it creates exigent circumstances that vitiates the need for a warrant, yet they waited until they took the guy into the station? Really? What the police want here is the right to give anyone arrested on what they consider suspicion of DUI a breathalyzer test at the station or in other words to just throw out the rule requiring warrants for the search of a person. Think about it, if they can do a breathalyzer why not a blood test? Why not a full body scan? Or anything else they dream up?

    3. I don’t know that it makes a difference, but they’re not attempting to seize evidence in any conventional sense: they want evidence of intoxication, not possession. They don’t want to get hold of a tangible item but its intangible effect on a driver’s nervous system. And frankly, they already have a basis for the arrest by noting a number of effects of intoxication: slurred speech, odor, bloodshot eyes, etc. And that’s before they administer a sobriety test. The problem with that evidence is that it can be contradicted later by a competent lawyer, at least to the satisfaction of one juror. So they want a chemical test to clinch evidence of intoxication. Forcing suspects to provide evidence of an intangible state of mind using invasive techniques seems to my untrained eye substantially different from busting down an apartment door to keep a suspect from flushing drugs down the toilet, and even in then cops would still need a warrant.

      1. The physical evidence is whatever substance is in your breath that shows you have been drinking. So I don’t think that is going to be an issue. It is a search for evidence. The issue is do you need a warrant.

        1. Only because the plaintiffs are arguing from a 4th amendment point of view. What they should be arguing is that the 5th amendment forbids the state to force you to testify against yourself.

          1. That wouldn’t work. Your physical characteristics, what is in your breath, how tall you are, your blood type and such are not considered testimonial.

            1. In what universe is being forced to take a breathalyzer/blood test not being forced to incriminate yourself?

              1. How is it different than giving fingerprints?

              2. In one where they can compel a DNA sample?

              3. The 5th doesn’t say that, though.

                1. Where “that” is “not being forced to incriminate yourself.”

                  1. The right against incrimination has always meant going back to England the right not to have to testify. It has never been construed to mean physical characteristics.

                    1. Drawing the line at “physical characteristics” and not “externally observable characteristics” is letting them steal a base. They shouldn’t have the power to draw blood or search bodily cavities without a warrant.

                    2. Ah, never mind. I’m talking about the 4th Amendment, you’re talking about the 5th.

        2. It would seem that a warrant would be needed, unless the “reasonableness” threshold is maintained.
          Is it a “reasonable” violation of the security of one’s person, to measure a component of the contents of that person’s breath?
          How much money have lawyers made over arguments about the meaning of that word?
          It must be remembered that these Amendments were written after recent experiences with government breaching, in this case, the security of the population, through “general” warrants that, apparently, didn’t require “probable cause” or that it be “supported by Oath or affirmation”.
          Government doesn’t want you to be able to hide anything from them, it seems as if the Constitution was written by people, who wanted to be able to, to a certain extent.
          It would seem, however, since the prohibition contained in the Fourth is not limited to Congress, as is the First, it would apply to the states, as well and is in need of federal legislation supporting, or providing exceptions to, its provisions. But not by the jurisdiction that is only granted power over appeal. They should be able to strike down laws but not impose substitutes – a la Miranda., Roe, Obergefell, etc.

      2. It’s not really an intangible state of mind, though. It’s a tangible measure of alcohol present. It’s a kind of silly proxy for impaired driving, but it doesn’t seem so silly as to be unconstitutional.

        1. The two are inseparable. Why does it matter how much alcohol is on your breath? Precisely and solely because the state considers it a proxy for impaired driving. Since the 18th Amendment was repealed, any law that penalizes drinking-qua-drinking is unconstitutional.

          1. Just like they consider age as a proxy for being mature enough to seek a license or drink.

            But, yeah, they are separable. They just aren’t separated in this instance.

            I think drunk driving laws are kind of silly, but it’s hard to see how using BAC as a proxy for impairment is unconstitutional, just because it isn’t perfect.

            1. I think you are saying exactly the same thing I’m saying but missing the point I’m making.

              If they were “separable” then it would be unconstitutional. It is constitutional precisely because they are inseparable.

              Age is a different animal, because the courts act like minors are wards of the state who are only temporarily in the custody of their parents.

              1. Ok, the wording on that is piss poor. It’s not a causal relationship. The constitutionality hinges on BAC being used as a proxy for impairment. The two issues are “separable” in a practically useless intellectual argument sense, but for all intents and purposes the state’s authority to regulate BAC while driving is hitched to its authority to regulate driving, not its authority to regulate the consumption of alcohol, because it has none.

                1. Yeah, it’s definitely tied to the state’s authority to regulate driving.

              2. No, it’s constitutional because it’s seen as a reasonable proxy for the level of impairment sought to be made illegal. There’s no logical or physical requirement to tie DUI to any particular level of BAC at all. It’s just a bright line test whereas field sobriety tests and even video of the accused’s driving isn’t.

                It’s a way to make it something like a strict liability offense, which is why I don’t like it, but I don’t think that makes it unconstitutional.

      3. The whole 0.08 BAC needs to be tossed out. It doesn’t hold up to scientific rigor and doesn’t hold a lot of meaning. I can show you a career alcoholic with a 0.08 BAC to acts stone cold sober and a 110lb woman with a 0.06 BAC who is clearly incapacitated. Also, from a pure safety perspective, does it matter the level of impairment or the source. Fatigue, alcohol, drugs, these all lead to impaired driving; in small amounts likely harmless, in large amounts they are a major hazard.

        1. This is my issue. You’re accused of exceeding their definition of intoxication, not of being intoxicated. All of the symptoms of intoxication, most importantly the field sobriety tests, are closer proxies to your actual state of impairment than their arbitrary statutory limit. But the limit helps define the unlawful state of intoxication. So either you take the aggravated hit by refusing to provide a sample and hope that your performance in the FST proves you weren’t intoxicated, or you provide the sample and risk proving you exceeded the statutory limit.

          1. Isn’t that the issue, though?
            In some states the refusal to take the test is prima facie evidence that you were intoxicated and you don’t get the chance to prove you weren’t through the testimony about your performance on the FST.
            That’s why I like the story of the jurisdiction that, upon arrest for failing the FST, had another one done, in the station, videotaped. As reported, everyone planning to fight their DUI, withdrew their challenge upon being shown the tape. It is also a way of showing impairment, versus the measure of a chemical presence, which can produce different results for different people.
            A universal FST, with some kind of measurable criteria should be developed and we could end this fight over BAC and get to keeping the impaired, not just those over a chemical threshold, off the roads.
            It would be nice, too, if the police were out on those roads, looking for people doing a bad job of driving, instead of congregating at road-blocks, that, in my area, at least show about a 1% success rate.

        2. Pics of the drunk, svelt, little minx or GTFO.

        3. My fave law spin is ‘impaired to the slightest degree’. Soooo, .05 BAC presumes no impairment, but that shouldn’t matter …

  3. According to North Dakota, the state has a legitimate interest in combatting drunk reckless driving…

    If the driver was driving recklessly, get a warrant. If not, pound sand. Even presuming driving recklessly while drunk is worse than any other kind of reckless driving.

  4. When you get a license to use public roads, the contract says you must submit to a breath test or face penalties. I thought libertarians were all about upholding contracts.

    Now if a person is driving drunk without a license, and refuses to submit to a breath test, I would say they should not be subject to any penalties for refusal. After all, they didn’t sign the contract.

    1. You sign a contract contingent on losing your license, not on facing criminal penalties. The administrative forfeiture doesn’t carry any criminal implications afaik. So you’re right, the requirement is a contractual obligation, but violating the contract merely means losing your license.

    2. When you get a license to use public roads, the contract says you must submit to a breath test or face penalties. I thought libertarians were all about upholding contracts.

      Not if the “contract” voids your constitutional right, or is something you basically must have provided by a compulsory monopoly provider that forbids any competition.

      If buried in the fine print of a driver’s license was wording to the effect of “The Bill of Rights does not apply to anyone driving on a public road”, would that be a valid, constitutional “contract”?

    3. When you get a license to use public roads…

      That’s not Sarc. Sarc’s getting a cuppa in the break room. That’s one of Sarc’s coworkers, and you can’t convince me different.

      1. It’s me, hovering between serious and sarcastic.

    4. You raise another problem. where in the Constitution does it give the government authority to require a driver’s license to drive on public land? It doesn’t require a license to ride a horse, walk, run on public land either and those things were around in the 18th Century.

      This is a typical law enforcement argument to make prosecutions easier, which they should not be. If it difficult to get evidence to convict someone on a DUI charge- too bad. It is supposed to be difficult.

      Besides, severe criminalization of DUI does not work. It is a minor offense in the grand scheme of things and severe if someone is hurt or killed because of impaired driving.

      The main problem is impaired/distracted driving. If you drive… then drive. Stop texting, eating, yelling at your kids, playing with GPS and DRIVE.

  5. Does it violate the fourth? Unconstitutional. There, that was simple.

    1. Are you arguing that all warrantless searches are inherently unreasonable? That documenting the current state of evidence before it is automatically destroyed by the body is unreasonable? Something else?

    2. What about the 5th?

      1. It seems more akin to a physical status than being a witness against himself.

        Would the 5th preclude taking your fingerprints or DNA?

        1. The 5th precluded taking a bullet lodged in an individual’s body. It does not preclude collecting fingerprints under current precedent. Fingerprints (and mug shots, though they were unmentioned) are external measurements of the body. Somewhere between that and removing the lodged bullet is the point at which the action becomes unconstitutional.

          Does that line fall before or after a breathalyzer? Drawing blood?

          I don’t know.

          1. One would think removing bodily fluids would be after the line of removing foreign objects.

          2. I think that’s more about intrusiveness and risk than being a witness against oneself.

            Drawing blood, in my view, is more intrusive than taking a cheek swab for DNA, but it’s still a very common process that’s occurring probably tens or hundreds of thousands of times a day. I’d say that it’s on the constitutional side of “too intrusive” if that’s the only constitutional objection.

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  9. This really is a no-brainer and a dead loser for the state. Once again the state argues that following the constitution is hard so they shouldn’t have to do it.

    Therefore I predict this is a toss-up for the SC.

    1. Why is this no-brainer unreasonable or otherwise a constitutional loser for the state?

      1. Criminal penalty for failing to submit to warrant-less search of your person.

        1. If the search is not unreasonable, is a warrant required?

          1. Rather than debate about the reasonableness of the search I am going to assert that allowing cops in the field to decide on reasonableness is the same as giving them carte blanche to search whatever, whomever and whenever they want. Dangerous territory.

            1. Also, if the reasonableness is up for debate in any given case shouldn’t that be decided by a court? Contesting the reasonableness should not automatically trigger criminal charges.That is a pretty clear violation of due process.

              1. It is being decided by a court, right? Isn’t that what the article’s about?

            2. I am going to assert that it’s not anything like giving them carte blanche because the cops in the field won’t be the ones deciding reasonableness. The court will say that these searches are reasonable without a warrant or that they aren’t.

              1. Reasonable under what circumstances? That you were driving a car? Or that you were stumbling around and slurring your words?

                Ultimately it is going to come down to the cop deciding and we know what that means.

                You want to do execute a search? Get a warrant. No, you can’t file criminal charges against me for taking that stand.

                *As I understand it the case is really two parts: is the search itself unconstitutional and whether or not criminal charges can be laid against a person for refusing the test.

                “Birchfield maintains that the state law imposed an unconstitutional condition upon him, forcing him to either sacrifice his constitutional right to be free from a warrantless search under the Fourth Amendment or else face criminal sanctions.”

      2. What Dave says…criminal penalties for exercising your constitutional rights. I would say ‘exercising your inherent rights’ except that this one is spelled out specifically in the constitution, the document that what the government is prohibited from doing.

        1. You’re also begging the question. If this is not an unreasonable search, they don’t need a warrant under the Constitution.

          1. No, you’re twisting the wording of the 4th Amendment.

            The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

            It doesn’t say that “reasonable” searches and seizures don’t require warrants, it says that unreasonable searches and seizures are completely forbidden.

            1. If you’re arguing that all searches require a warrant, I’d say you’re the one twisting it.

              If it said something like, “The right of the people to be secure in their persons, houses, papers, shall require a warrant not entailing an unreasonable search or seizure, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” that would be more defensible.

              1. If you’re arguing that all searches require a warrant

                I am not. I specifically said exactly what I meant.

                What “unreasonable” means is another question entirely.

      3. It should be but a no-brainer unreasonable or otherwise constitution loser for the states but the states will probably win because we live in a soft police state.

        The precedent that DNA, fingerprints, saliva, breath, handwriting and blood are not possibly self-incriminating under the meaning of the 5th Amendment is wrong. If the state accuses me of a crime, the state has to prove beyond a reasonable doubt that I am guilty with me helping the state at all. I don’t have to say anything. I don’t have to provide handwriting samples. I don’t have to blow into a machine. I don’t have to give blood.

        If the government wants to prosecute people for crimes, then do it write and follow the Constitution.

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  12. How about a Fifth Amd. defense against being forced to be a witness against himself? I don’t take money for telling lawyers who argue before SCOTUS how to do their job. It is the pretenders to knowledge of the law who do that.

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