Warrantless Breath Tests Upheld in Birchfield v North Dakota
In Birchfield v North Dakota (2016), the U.S. Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. However, it held that warrantless blood tests do run afoul of the Constitution.
The Facts of Birchfield v North Dakota
Danny Birchfield, Steve Beylund, and William Bernard of Minnesota challenged their convictions for refusing to undergo blood alcohol testing. As detailed in the Court’s opinion, all fifty states have enacted “implied consent” laws that require drivers to submit to blood alcohol content (BAC) tests. While the refusing a test originally resulted in the suspension of the individual’s driver’s license, many states have enacted tougher drunk-driving laws that impose more significant penalties on recidivists and drivers with particularly high BAC levels. Since these increased punishments create strong incentives to reject testing, states like North Dakota and Minnesota have made it a crime to refuse to undergo testing.
In the cases before the Court, all three petitioners were arrested on drunk-driving charges and refused to submit to BAC testing. They argued that the Fourth Amendment prohibited criminalizing the refusal to submit to the test.
The Court’s Decision in Birchfield v North Dakota
By a vote of 7-1, the Court held that “the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.” Justice Samuel Alito wrote the majority opinion.
While the Court acknowledged that taking a blood sample or administering a breath test is a search governed by the Fourth Amendment, it further noted that searches may nevertheless be exempt from the warrant requirement if they fall within certain exceptions, such as searches conducted incident to a lawful arrest.
Noting that the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest, the Court followed the analytical framework established in Riley v. California, 573 U. S. ___ (2014): “whether to exempt [the] search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”
The Dissent in Birchfield v North Dakota
With regard to breath tests, the majority found that they do not “implicat[e] significant privacy concerns” and that the physical intrusion is “almost negligible.” As Justice Alito noted, “The effort is no more demanding than blowing up a party balloon.”
Justice Alito added, “Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government’s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest.”
In contrast, the majority found that blood tests are “significantly more intrusive.” As Justice Alito explained, they pierce the skin and extract a part of the subject’s body. In addition, the opinion noted that “blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading.”
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Preamble to the Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.