Birchfield v. North Dakota: New Rules For DUI Testing

In June of 2016, the Supreme Court of the United States handed down its decision in a trio of cases dealing with the issue of warrantless chemical tests (e.g., breath tests, blood tests) in DUI cases. Three petitioners, two from North Dakota and one from Minnesota, had all been arrested for DUI and were asked to submit to either a breath or blood test. In these two states, as well as a number of others, refusing a chemical test carries not only an administrative penalty (such as license suspension), but also a criminal penalty. Two of the petitioners refused to take the test and were criminally prosecuted. One petitioner agreed to submit to a test so as to avoid the criminal penalty. The cases were subsequently appealed all the way to the Supreme Court. The high court took up the cases and consolidated them as they all dealt with the same issue: "whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream."

In determining the answer to this question, the court first looked at whether or not the warrantless tests were permissible under the Fourth Amendment. The court determined that the tests are a search. It stated that if this type of search was allowed then " it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant." While a warrant is normally required to conduct a search, there are exceptions to the warrant requirement. One of these exceptions is a search incident to arrest which gives "officers carrying out a lawful arrest . . . the authority to make a warrantless search of the arrestee's person." The court concluded that warrantless chemical tests fall under this exception.

However, the court did not find that every type of warrantless chemical test could fit into the search incident to arrest exception. The court looked at the privacy interests that were implicated in both breath and blood tests. It determined that breath tests were minimally invasive as they simply require an individual to breath into a testing device. By contrast, the court determined that blood tests were significantly more invasive, as blood tests "'require piercing the skin' and extract[ing] a part of the subject's body." The court concluded "[b]ecause breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."

The high court also decided whether or not criminal penalties were a permissible consequence for refusing to take a chemical test. It concluded that administrative consequences, such as license suspension, could be deemed insufficient, especially in cases involving "dangerous offenders, such as those who drive with a BAC significantly above the current limit of 0.08% and recidivists." The court stated, "[t]he laws at issue in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to provide an incentive to cooperate in such cases, and we conclude that they serve a very important function."

If you or a loved one has been charged with driving under the influence in Georgia please do not hesitate to contact Cherokee County DUI Attorney Richard Lawson today.