SCOTUS Upholds Penalties for Warrantless Breath Tests, but Not Blood Tests, in DUI Arrests

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The U.S. Supreme Court has issued the long-awaited ruling in a case that brings into question penalties for refusal to submit to warrantless breath or blood testing when arrested for a DUI.

In Birchfield v. North Dakota the high court ruled that criminal penalties could be applied for refusing to submit to a breath test, which the Court deemed less invasive than blood. However, for states that currently apply criminal penalties for failure to submit to a warrantless blood draw, the Court found that blood testing was more intrusive, and thus requires a warrant.

Today all 50 states have laws on the books that have some form of “no refusal” or “implied consent” laws that apply mandatory penalties for a refusal to be tested during a DUI stop. In 2013, the high court ruled in Missouri v. McNeely that warrantless testing was unconstitutional, causing many states to strike down or alter their own implied consent laws over the last three years. Many observers thought SCOTUS would use today’s ruling to solidify the court’s position on McNeely and perhaps further distinguish between civil and criminal penalties. But instead today’s ruling distinguishes between the invasiveness of breath testing and blood testing.

In the opinion, Justice Samuel Alito wrote:

“Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”

The opinion goes on to state:

“Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.”

Justices Roberts, Kennedy, Breyer, and Kagan joined in the opinion.

The Birchfield ruling also included decisions on a second North Dakota case and a case from Minnesota that challenged license suspensions. The high court’s ruling affirmed the lower court’s finding in the Minnesota case, while the second North Dakota case was remanded to state court.

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Kathleen Brown

Kathleen Brown

Kathleen Brown has 20+ years of experience as a public relations and marketing communications professional, including 16 years working with media, lawmakers, special interests, and government agencies on the issues of drunk driving and other alcohol-related crime. Brown first joined AMS in 2001 as an independent consultant, working with the board of directors to build private equity for final R&D and product launch of the first generation of SCRAM. She joined the staff full-time in 2004. She has worked extensively with the news media as a topic expert for industry data and research studies, community corrections, monitoring technologies, drunk driving, alcohol misuse, and the judicial system. She is currently director of Marketing & Public Relations for AMS.

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