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U.S. Supreme Court Decides Constitutionality of Warrantless Breath & Blood Tests


Our January 2016 post examined the issue of whether a law enforcement officer, in Florida, was required to obtain a search warrant as a condition precedent to the administration of a breath test and, if so, whether an accused person could be charged with a crime, or otherwise penalized, for refusing such a test in the absence of a search warrant (see Florida Supreme Court to Consider the Constitutionality of Breath Test Refusal Charges Without a Search Warrant).

To recapitulate, the Fourth Amendment prohibits unreasonable searches; if the search is minimally intrusive, no warrant is required. Where the search is not reasonable, Fourth Amendment protections are invoked, and a warrant must (typically) be obtained as a condition precedent to the search or seizure. American jurisprudence has, however, long recognized a number of exceptions to the warrant requirement which include searches that are conducted incident to a lawful arrest and those instances where consent is freely and voluntarily given. Earlier this year, Florida's Fifth District Court of Appeal determined that a warrantless breath test could not be justified as a search incident to arrest, nor could consent to such a test be implied based solely on a driver's acceptance of the privilege of operating a motor vehicle on Florida's public roadways. Implied consent, the court reasoned, is not quite the same as Fourth Amendment Consent. The Fifth District did, however, justify the propriety of warrantless breath tests on the basis of reasonableness, holding that a breath test was not an unreasonable search and seizure and thus, did not invoke Fourth Amendment protections (which would necessitate the securing of a valid search warrant prior to its administration on a suspected drunk driver). As stated in our January post, the Florida Supreme Court agreed to decide the issue, and I said I would keep you all updated as the issue was litigated. Although the Florida Supreme Court has not yet decided the issue, the United States Supreme Court did, just last week, in Birchfield v. North Dakota.

Birchfield actually involved three separate DUI cases that were consolidated for review by the U.S. Supreme Court. Petitioner Danny Birchfield was arrested for DUI in North Dakota in 2013. Following his arrest, the officer requested a blood sample from him. Birchfield refused to allow his blood to be drawn and, as a result, was charged criminally with a misdemeanor violation of North Dakota's refusal statute. He pled to the charge, but reserved his right to appeal, arguing that the Fourth Amendment prohibited criminalizing his refusal to submit to the blood test. The North Dakota Supreme Court affirmed the conviction. Petitioner William Robert Bernard, Jr. was arrested in Minnesota for DUI in 2012 and was asked to submit to a breath test. He refused and was charged with refusal in the first degree which, under Minnesota law, carried a three year minimum mandatory sentence. The Minnesota Supreme Court upheld the conviction. The third Petitioner, Steve Beylund, was also arrested for DUI in North Dakota in 2013. He was taken to a nearby hospital and was read North Dakota's implied consent law by the arresting officer (wherein he advised that the refusal to submit to the requested test was itself a crime). Beylund agreed to have his blood drawn which later revealed a blood alcohol concentration of .250%. His license was administratively suspended for two years. Beylund sought to have the suspension overturned in a North Dakota District Court on the grounds that his consent to the test was coerced by the arresting officer's statement that refusing was a crime. The District Court rejected his argument and the North Dakota Supreme Court affirmed.

While each of the three cases are somewhat different factually (Petitioner Birchfield was asked for a blood sample and refused, Petitioner Bernard was asked for a breath sample and refused, and Petitioner Beylund was asked for a blood sample and consented), the U.S. Supreme Court noted that "success for all three petitioners depends on the proposition that the criminal law may not compel a motorist to submit to the taking of a blood sample or a breath test unless a warrant authorizing such testing is issued by a magistrate". The Court framed the issue before it as follows: "whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusal to take a warrantless test measuring the alcohol in their bloodstream".

Like Florida's Fifth District in the Williams case, the U.S. Supreme Court began its analysis by acknowledging the Fourth Amendment's prohibition on unreasonable searches and seizures and identifying the same exceptions to the warrant requirement: searches that are incident to a lawful arrest, and those that result from consent that is freely and voluntarily given. With that in mind, the Court drew a distinction, almost from the outset, between breath tests and blood tests. Breath tests are minimally invasive and are akin to drinking from a straw. Blood tests, on the other hand, are far more invasive in that they require the piercing of the skin. Also, a breath sample can be used only for the purpose of measuring breath alcohol content whereas a blood sample can, at least potentially, be used by law enforcement for purposes far beyond a determination of its alcohol content (such as identification in unrelated crimes through DNA testing).

After a fairly detailed analysis, The U.S. Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving. This conclusion is in stark contrast to that of Florida's Fifth District Court of Appeal in the Williams case, wherein it was held that a warrantless breath tests could not be justified as a search incident to a lawful arrest (again, the Fifth District justified warrantless breath tests on their inherent reasonableness - it is only unreasonable searches that invoke Fourth Amendment scrutiny and therefore require a valid search warrant). In reaching its conclusion, the U.S. Supreme Court balanced privacy concerns (of the test subject) against society's need for BAC testing in DUI cases (for purposes of prosecution). It determined that the impact of breath tests on privacy is slight (given that they are very minimally invasive) and the need for BAC testing is "great".

The Court reached a much different conclusion, however, with regard to blood tests, which it described as "significantly more intrusive". The court stated that the Respondents (North Dakota and Minnesota) offered no satisfactory justification for demanding the more intrusive alternative test (blood tests) without a warrant.

Accordingly, the U.S. Supreme Court concluded that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for DUI. Breath tests, "like all cases involving reasonable searches incident to arrest, do not require a warrant". Regarding the issue of implied consent statutes, the Court drew a distinction between breath and blood tests there as well, holding that "motorists cannot be deemed to have consented to submit to a blood test [by virtue of accepting the privilege to drive on a state's public roadways] on pain of committing a criminal offense [refusal to submit to testing].

Here is the bottom line: warrantless breath tests following a lawful DUI arrest are permissible and the refusal to submit to a breath test can subject the driver to certain penalties, including the loss of his or her privilege to drive and/or prosecution for a substantive criminal offense. Warrantless blood tests following a lawful DUI arrest do, however, violate the Fourth Amendment and, as such, a person who refuses a blood test in the abense of a valid search warrant cannot be penalized, criminally or administratively.

I am not certain when the Florida Supreme Court will weigh in on this issue but will post an update when that happens. In all likelihood, our Supreme Court will reach the same conclusion, and for the same reasons, that the U.S. Supreme Court did in Birchfield.