Seth Okin is a DUI, traffic, and criminal defense attorney who practices across the state of Maryland.
The Supreme Court has ruled that police officers can require drivers to submit to breathalyzer tests without a warrant. The holding of Birchfield v. North Dakota allows for the arrest of individuals who refuse to allow the blood alcohol content (BAC) of their breath to be tested during a traffic stop, a penalty imposed by many states.
While police must still obtain a warrant for the more invasive form of BAC testing requiring a blood sample, a majority of the Court held that law enforcement’s interest in accurately testing BAC at the time of the traffic stop outweighs potential privacy concerns when the more commonly administered breath test is utilized.
Several states impose criminal and civil penalties for refusing to consent a handheld breathalyzer test, with arrest being the most common consequence of refusing to allow one’s BAC to be tested. In Birchfield, the Supreme Court addressed the specific question of whether criminalizing a drivers’ refusal to take a BAC test violates the Fourth Amendment.
Although Plaintiffs cited privacy concerns, arguing that the Fourth Amendment is meant to protect citizens from these types of warrantless searches, a majority of judges nonetheless found their argument unconvincing when applied to handheld breathalyzer devices.
The majority opinion was written by Alito and joined by Roberts, Kennedy, Kagan and Breyer, and draws a distinction between the two methods used to determine a person’s BAC; blood and breath testing.
Although the Court has ruled in the past that chemical tests of blood alcohol content constitute searches under the Fourth Amendment, Alito reasoned that warrantless “searches” of a person’s blood alcohol level through a minimally-invasive breath test do not implicate the same types of privacy concerns that are raised when administering a blood test.
Taking into account the time-sensitive nature of accurately measuring a person’s BAC, which naturally decreases as the body metabolizes alcohol, Alito felt the interests of law enforcement outweighed any privacy rights implicated by being forced to blow into a hand-held device.
Alito also noted that individuals who refuse to take a breathalyzer test are likely not doing so because they feel that the act of blowing into a straw is an invasive violation of their privacy, but rather because they do not want their BAC to be tested at that time.
In contrast to the quick and easy administration of a breathalyzer test, the process required for a blood test requires a person’s bodily fluids to be physically and permanently drawn out of their body, implicating a more serious privacy concern. The warrant requirement for law enforcement to require an individual to submit to this type of testing stands.
Birchfield specifically challenged the criminal penalties many states impose upon individuals who for refusing to submit to a breath test in the absence of a warrant, arguing that criminal penalties may not be imposed for lawfully refusing to consent to a warrantless search.
The majority opinion analyzed the practical methods involved in administering these searches, concluding that a breath test, but not a blood test, may be legally administered as a “search incident to lawful arrest for drunk driving.”
Justices Sotomayor and Ginsburg dissented, arguing that both tests should require law enforcement officials to obtain a warrant. Justice Thomas wrote separately to clarify that while he agreed with the majority opinion, he felt that attempting to draw distinctions between the different BAC tests was irrelevant to the legal analysis. Thomas felt that the distinction the majority drew between various methods of administering the same essential chemical test were arbitrary.
While Sotomayor and Ginsburg warned that relaxing the warrant requirements could undermine important Fourth Amendment privacy protections, Thomas felt neither blood nor breath tests should require a warrant in the first place.
In light of the fact that warrants in these situations may be obtained in minutes over the phone, the survival of warrant requirement is less of a condition in practice than it may seem in the legal analysis. However, the holding may affect best practices of local state law enforcement in a variety of jurisdictions across the county.
As technology rapidly advances, allowing for ever-more sophisticated methods of BAC testing, the battle over what privacy rights are protected by the Fourth Amendment will likely require further analysis in the future.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.