Every June brings the most substantial Supreme Court decisions of the year, as the Court clears their docket of cases from the preceding term. The Court had a more eventful term than usual, with the sudden passing of Antonin Scalia in February, and the resulting 4-4 deadlock opinions. Still, the Court was able to render many decisions that will have a far-reaching impact on American life going forward.
A significant finding in the realm of criminal law came with the Court’s decision in a consolidated group of cases referred to as Birchfield v. North Dakota. The three cases sought to determine the limits of police authority in determining if a driver operates a vehicle under the influence of alcohol.
The Court determined, in a 5-3 opinion authored by Justice Samuel Alito, that refusing a breathalyzer test can be treated as a crime, and that no warrant is needed for officers to administer the test. Alito wrote that “breath tests are significantly less intrusive than blood tests” and that breath tests “may be administered as a search incident to a lawful arrest for drunk driving.” This ruling upheld the conviction of William Bernard, Jr., who was prosecuted for refusing a breath test in Minnesota.
The Court reached the opposite finding with regard to defendant Danny Birchfield, who was prosecuted in North Dakota for refusing a blood test. In this instance, the Court determined that blood tests are “significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Blood tests involve piercing the skin, and they provide a physical sample to law enforcement. For this reason, the Court determined that a warrant is needed before a blood test can be administered.
Prior to the Court’s ruling, 11 states, including Minnesota and North Dakota, went beyond the suspension of driving privileges for those refusing to take a breath test. Now that the Court has approved prosecution in these instances, more states will likely follow suit. The Court’s ruling will almost certainly lead to more breath tests and fewer, if any, blood tests in the future.
It is important to understand what the Court’s decision means for drivers in California. Section 23612 of the California Vehicle Code states that a person “lawfully arrested for driving under the influence of an alcoholic beverage… has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice.” However, the Supreme Court has made a strong statement that no warrant is needed for a breath test to be administered, but that a warrant is needed for a blood test to be administered to the driver.
Allowing a suspected drunk driver to choose the method of determining his or her intoxication level, if any, appears to be at odds with the Court’s findings in the Birchfield cases. While law enforcement is now able to dispense with a warrant in order to administer a breath test to a suspected drunk driver, the driver’s option of “choosing” to have a blood test performed instead seems to have wiped away by judicial fiat.
As the Birchfield cases addressed instances of drunk driving only, it remains to be seen whether they also apply to matters involving DUID, or driving under the influence of drugs. Breath tests are not generally used for determining impairment of marijuana and other drugs, and blood tests are the method used to determine the cannabinoid levels in a driver’s system. Whether a driver can be prosecuted for refusal to submit to blood testing in suspected cases of drug impairment remains to be seen.
With marijuana legalization on the ballot in California this November, the state will have to grapple with the meaning of this decision sooner, rather than later. Will a driver pulled over for suspected drunk driving have a different set of rights than a driver who is suspected of drug use only? Or to put it another way, does a driver’s refusal to take a blood test for drunk driving also apply to DUID cases? The Court may need to revisit this issue in the future, as more states legalize the use of recreational marijuana, and the need for determining a point where driving is impaired becomes clear.
The two dissents in this case are also worthy of note. Justice Clarence Thomas opined that neither forms of testing should require a warrant, while Justices Sonia Sotomayor and Ruth Bader Ginsburg held that both forms of testing should require warrants. “This court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement,” Sotomayor wrote. “I fear that if the court continues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion.”
The implications of the Court’s finding in Birchfield are chilling. Refusing to submit to a breath test is no longer an option, and will bring criminal prosecution for those who do so. The need to obtain a warrant for a blood test suggests law enforcement will take the path of least resistance by administering breath tests exclusively.
A study prepared for the U.S. Department of Transportation in 2008 found that the average rate of refusal to submit to BAC testing was around 22%. In the aftermath of the Birchfield case this number will likely decline, as criminal prosecution for refusal becomes more commonplace. In the warrantless world the Court has now ushered in, there is no longer any need to obtain the driver’s consent for testing. The best advice, as always, is to not get behind the wheel after any amount of drinking.
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