Drivers Cannot Be Criminally Prosecuted for Refusing to Submit to a Warrantless Blood Test

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 21, 2016

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Drunk Driving Concept of JusticeIn the ever-escalating war against drunk drivers, some states have made it a crime for a driver to refuse an officer’s request to submit to a blood test after being arrested for an impaired driving offense. By a 7-1 vote, the Supreme Court ruled that drivers may not be criminally prosecuted for refusing to submit to a blood test when the police have not obtained a search warrant that authorizes the seizure of their blood.

The Court issued its decision on June 21, 2016. Only Justice Thomas dissented from the entire decision.

The decision does not disturb “implied consent” laws that impose driver’s license suspensions or revocations upon drivers who refuse to submit to the tests. Nor does the decision bar states from criminally prosecuting drivers who refuse to take a breath test after being arrested for DUI.

Implied Consent Laws

Every state has adopted a law that prohibits drivers from operating a vehicle if they have a prohibited blood alcohol concentration (BAC). Every state pegs the prohibited BAC at 0.08% for most adults. State laws typically set a lower limit for minors, for commercial drivers, and for drivers who have a probationary or restricted license.

A BAC can be measured by testing a sample of the driver’s breath, blood, or urine. Since obtaining and preserving a valid urine sample is problematic, the police generally rely on breath or blood tests.

Breath samples are captured and analyzed by a variety of machines that have evolved over time. Modern machines measure deep lung air and use a formula to convert alcohol content in breath to alcohol content in blood. The machine’s ability to capture deep lung air (rather than residual alcohol in the mouth), the accuracy of its calibration, and the questionable assumptions upon which manufacturers rely in programming the conversion formula can make attacks on breath test results a fruitful defense for DUI defense lawyers.

To obtain BAC results that are not subject to those attacks, law enforcement agencies sometimes insist that drivers submit to a blood test rather than a breath test. Circumstances under which the police will demand a blood test vary from state to state and from department to department. Drivers who were involved in an accident, who have a history of DUI convictions, or who are suspected of being under the influence of drugs rather than alcohol are most likely to be asked to submit a blood sample.

To coerce drivers into submitting to a breath or blood test, all states have enacted implied consent laws. Those laws expose drivers to the threat of a prompt license suspension or revocation if they refuse to take a test without legal justification. A few states, however, have gone beyond revocation as a potential consequence of refusing a test. Those states make it a crime to refuse the test. Drivers in those states can go to jail for refusing the test even if they are acquitted of the DUI.

The Issues in Birchfield v. North Dakota

Whether a driver who refuses to submit to a breath or blood test, when no court has issued a warrant requiring the driver to provide a breath or blood sample, can be criminally prosecuted has until recently been an unsettled question. In Birchfield v. North Dakota, the Supreme Court decided three consolidated cases from North Dakota and Minnesota.

Both states make it a crime to refuse an officer’s request to submit to a breath or blood test. The defendant in one of the cases was prosecuted because he refused to take a breath test. The defendant in another case was prosecuted for refusing to take a blood test. The third defendant submitted to a blood test, then argued that the test result could not be used as evidence against him because his submission to the test was coerced by the threat to prosecute him for a crime if he refused.

The question before the Court was whether the police may lawfully demand that an arrested driver submit to a breath or blood test, using the threat of a criminal prosecution to coerce compliance with the demand. The Court was also asked whether a driver can be charged with a crime for refusing the test.

The defendants argued that basing a prosecution on a driver’s refusal to submit to the test, or coercing submission to the test by threatening a prosecution for refusing it, violates the Fourth Amendment to the United States Constitution. Under most circumstances, the Fourth Amendment prohibits searches and seizures that have not been authorized by a search warrant

Taking a Breath or Blood Sample is a Search and Seizure

The Court concluded that taking a sample of a driver’s blood or breath constitutes a search and seizure within the meaning of the Fourth Amendment. While most searches of a person (such as looking inside an individual’s pockets) require a warrant, a long-standing exception to the warrant requirement authorizes the police to search the person of someone who has been arrested. That exception protects the police from harm by allowing them to find concealed weapons, and prevents hidden evidence from being destroyed.

Another exception allows the police to search someone who has voluntarily consented to the search. Consent that is coerced by a display of authority is not voluntary.

A Warrant is Not Required to Take a Breath Sample

Unsurprisingly, the Court decided that taking a breath sample following an arrest fits within the “search incident to arrest” exception. Since breath tests are not unduly intrusive, the Court decided that they do not implicate significant privacy interests. Taking a sample of an arrested person’s breath is not much different than swabbing the inside of the cheek to obtain a DNA sample or scraping under fingernails to search for evidence that the arrested individual had physical contact with a crime victim. The Court has a history of approving warrantless searches of that nature, provided that they are conducted after a lawful arrest.

Since a driver has no Fourth Amendment right to refuse to provide a breath sample after a DUI arrest, prosecuting an arrested driver for a crime if the driver refuses to take a breath test does not violate the Constitution. The Supreme Court therefore concluded that states are permitted to prosecute drivers for the crime of refusing a breath test, provided the officer had probable cause to administer the test. Justices Sotomayor and Ginsburg dissented, having concluded that a warrant is required before a driver can be compelled to provide a breath sample.

Submission to Blood Tests Cannot Be Compelled Without a Warrant

The Court concluded that blood tests are different. A breath sample can be seized by requiring the driver to exhale into a tube, but a blood sample can only be obtained by invading the body. Blood tests are therefore substantially more intrusive than breath tests. Since the police could get evidence to support a DUI prosecution by taking a breath sample, their interest in acquiring a blood sample is not so imperative as to justify compelled blood draws after routine DUI arrests. A search warrant is therefore required before a blood test can be demanded.

The Court recognized that alcohol is eliminated from blood as time passes, and that a blood sample drawn a few hours after a driver stops driving may not provide reliable evidence of a driver’s BAC while driving. The Court decided that any potential delay involved in obtaining a warrant is not a sufficient reason to dispense with the warrant requirement. The police can obtain a breath test without a warrant and that test is, in most instances, an adequate substitute for a blood test.

Since drivers have a constitutional right not to consent to warrantless seizures of blood, they cannot be subjected to a criminal punishment for exercising that right. Nor can they be threatened with criminal punishment in order to coerce them into submitting to a blood draw, because coerced consent is not a voluntary agreement to surrender Fourth Amendment protections.

Ramifications of the Court’s Decision

The Court’s decision protects important Fourth Amendment values without significantly harming the government’s ability to prosecute drunk drivers. In those unusual cases where a blood test is necessary (such as cases in which the driver is unconscious), the police will usually be able to obtain a warrant promptly if they have probable cause to support the warrant’s issuance. Since most drugs linger in the blood longer than alcohol (and since the concentration of a drug in a driver’s blood cannot easily be correlated with impairment), delaying a blood draw while applying for a warrant will probably not affect the strength of a drugged driving case.

Civil sanctions, such as the loss of driving privileges, may still be imposed when a driver refuses to consent to a blood test. Civil sanctions are intended to be coercive, but the Supreme Court concluded that states may reasonably condition the loss of driving privileges upon a driver’s refusal to comply with implied consent laws.

Whether a refusal to consent to a blood test could be used as evidence against a defendant in a DUI prosecution — to suggest, for example, that the defendant refused the blood draw because he knew he was guilty — was not a question before the Court and therefore remains unanswered. Other precedent, however, suggests that the exercise of a constitutional right may not be used in a criminal trial as evidence of guilt. Whether it is in a driver’s best interest to refuse a blood test will depend on the circumstances, and is a question that lawyers in different states might answer in different ways.

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