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Can you be punished for refusing to take a breath alcohol test?

April 20, 2016 by Lana Ulrich


(credit: Penn State)
(credit: Penn State)

This morning, the Supreme Court will hear oral arguments in Birchfield v. North Dakota, a case consolidated with two others to address the following issue: in the absence of a warrant, can a state make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood?

In North Dakota, for instance, any individual who operates a motor vehicle on any public or private road in the state is deemed to have consented to a chemical test of his or her blood, breath, or urine for the purpose of determining any intoxication levels. In 2013, the state amended this statute to make refusal to take the test directed by a police officer a crime punishable in the same manner as driving under the influence (“DUI”). Minnesota, the other respondent state in the case, has a similar law that makes it a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a chemical test. The United States, which has written an amicus brief on behalf of the states, makes it a misdemeanor for anyone driving in the National Parks to refuse a chemical test requested by an officer with probable cause to believe that a driver is impaired.

North Dakota’s brief emphasizes the severe problem of drunk driving in the United States: “Between 2005 and 2014, 112,998 people were killed in alcohol-impaired-driving crashes.” In 2012, North Dakota had the highest drunk-driving death rate in the country, with 11.3 deaths per 100,000 people. The state also explains that early laws criminalizing drunk driving were difficult to enforce because of the evidentiary problem of proving that drivers were intoxicated. But with the advent of new testing procedures, new laws were passed that permitted the use of blood alcohol concentration (“BAC”) as evidence of intoxication. Under these laws, prosecutors no longer had to prove actual impairment; a BAC above a certain level was generally enough to secure a DUI conviction. To aid these efforts, North Dakota imposed penalties—like revoking a driver’s license—on suspected drunken drivers who refused to submit to chemical tests.

Yet legislators were still concerned with the numbers of impaired drivers who escaped punishment by refusing chemical tests for alcohol and drugs. In 2011, 18.8 percent of those arrested for driving under the influence (over 1,000 people) refused to take a chemical test. These people were more difficult to prosecute criminally because of the lack of concrete evidence to convict them. And the primary administrative punishment for refusal (i.e., revoking their licenses) had little deterrent effect because offenders would simply continue to drive without a license. Thus, the state decided to impose criminal penalties on refusal to submit to a test. Minnesota’s brief explains that its law was also enacted for similar reasons, to help combat “the terrible toll drunk drivers exact on society.”

Danny Birchfield, the petitioner in the first case, drove his car off of the road in North Dakota, and failed a field sobriety test administered by a highway patrol officer. A preliminary breath test suggested that he was intoxicated; the officer placed him under arrest and read him the state’s mandatory implied consent advisory, which informed him that the law required him to submit to a chemical test, including a blood test, and that failure to do so was a crime. Birchfield nonetheless refused to submit, and was charged accordingly. He moved to dismiss the charge, arguing that it was unconstitutional under the Fourth Amendment for a state to criminalize refusal to submit to a chemical test of a driver’s blood. A court denied his motion to dismiss. That decision was upheld by the North Dakota Supreme Court, which ultimately found that the law was constitutional.

But Birchfield disagrees. He argues that the criminal penalty imposed by North Dakota punishes a person’s refusal to surrender their right under the Fourth Amendment to resist an unwarranted search. In 2013, the U.S. Supreme Court, in Missouri v. McNeely (2013), held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Thus, as the Birchfield brief states, “we assume all agree that a State may not subject people to criminal sanctions for exercising rights granted them by the Constitution—which means, in the context here, that a person may not face criminal penalties for refusing to submit to a search that is not authorized by a warrant or permissible under an exception to the warrant requirement.” But that is what North Dakota and other states have done: made it a crime for persons suspected of DUI to decline to submit to warrantless chemical tests, which cannot be squared with McNeely. Birchfield states that these criminal test-refusal penalties are unreasonable because they apply even when the person prosecuted for refusal to submit to a warrantless search was not charged with—or, indeed, was acquitted of—driving while impaired.

The American Civil Liberties Union—which was counsel of record in McNeely—filed an amicus brief supporting Birchfield. The ACLU concedes that drunk driving “is a serious threat to public safety. But the disputed statutes in this case do not criminalize drunk driving. They criminalize the assertion of a constitutional right. And that is something the government cannot do.” Since these chemical tests are searches under the Fourth Amendment, declining to submit to a warrantless search falls squarely within the ambit of that constitutional provision. An individual has a constitutional right to refuse to consent to such a search and insist that the police obtain a warrant. Therefore, the ACLU argues, the government cannot criminalize that conduct.

But North Dakota insists that, by definition, the Fourth Amendment is not implicated unless there is a search; because Birchfield never took a test, the state says, he was never actually “searched.” In the companion case Bernard v. Minnesota (in which the petitioner Bernard did consent to a breath test but only after being told of the criminal penalties for refusal) Minnesota also argues that, per the Court’s decision in United States v. Robinson (1973), there is a bright-line rule that police officers may, without a warrant, always conduct a full search of a person who has been lawfully arrested. In Bernard, the Minnesota Supreme Court relied on the rule from Robinson to hold that a warrantless breath test of a suspect lawfully arrested for driving while impaired does not violate the Fourth Amendment because it is a search incident to lawful arrest. So, because a police officer can compel a suspect to submit to a breath test, it does not violate the Fourth Amendment to criminally charge the suspect for refusing to take the test.

Mothers Against Drunk Driving (MADD) filed a brief on behalf of the respondent states, citing its support for enforcement efforts aimed to end drunk driving, like the laws at issue here. MADD argues that “nothing in the Constitution or in the Court’s jurisprudence requires a per se ban on all criminal penalties in this area.” Since the Supreme Court has upheld the right of states to impose administrative penalties—like license revocation, in South Dakota v. Neville (1983)—for refusing to submit to a test, in this case “the critical question is not whether a state may penalize an arrested driver’s refusal to consent to a warrantless BAC test,” but rather “what ‘penalty’ or ‘significant consequences’ a state may choose” in order to further its “compelling” interest in trying to reduce the damage caused by drunk driving. And Fourth Amendment cases often reject categorical rules in favor of a case-by-case analysis based on the “totality of circumstances.” MADD therefore argues that the Court should “continue to permit state legislatures in the federalism laboratory to experiment with the most effective mix of incentives to reduce and ultimately end the undisputed scourge of drunk driving.”

The states also build upon this point: even if the law does intrude upon the Fourth Amendment, the intrusion is justified due to the states’ compelling interest in protecting public roadways. Meanwhile, a breath test, for instance, is only “minimally intrusive.” And as Minnesota argues, its law is “carefully tailored to meet the government’s interest in combating drunk driving”; an officer can only request a breath test from a suspect after the officer has probable cause to believe the suspect is driving while impaired. Therefore, the law really only comes into play against a subset of people that the government has a great interest in obtaining a breath test from, because it already has good reason to believe they are driving drunk.

Finally, as the United States brief reiterates, the states are not actually forcing a person to submit to a test, but are just conditioning permission to drive on consent to testing. “No blanket ban exists on conditioning government benefits on search requirements,” the United States asserts. Birchfield and the ACLU have argued that driving is so necessary (especially in rural states like North Dakota) that “it is impermissibly coercive for a State to attach test conditions to it,” but the government responds that the Supreme Court has treated the right to drive as a paradigmatic privilege to which states may attach conditions: “The relevant condition here is that, in exchange for the privilege of driving, the driver relinquishes any right to refuse a chemical test under certain limited conditions. Given the validity of that condition, the use of traditional state enforcement mechanisms to secure compliance cannot be considered disproportionate.” And criminal enforcement is a better alternative to nonconsensual, or forcible, chemical testing, which could result in violent confrontations.

The Supreme Court first examined the issue of forcible bodily testing in Rochin v. California (1952), where the Court held that forcibly pumping the stomach of a criminal suspect in order to extract evidence—two capsules of drugs which the person had swallowed—constituted a violation of the Due Process Clause of the Fourteenth Amendment (this was pre-Mapp v. Ohio (1961), in which the Court incorporated the Fourth Amendment against the states). Such conduct “shocks the conscience,” the Court said, and constituted “methods too close to the rack and the screw to permit of constitutional differentiation.” Several years later, in Breithaupt v. Abram (1957), the Court distinguished Rochin, and found that a forcible blood test of a DUI suspect “taken by a skilled technician [does] not . . . ‘shock[] the conscience.’”

In 1966, the Court decided Schmerber v. California, in which it examined the chemical test issue under the Fourth Amendment for the first time. While Schmerber was hospitalized after an accident, his BAC was tested, and he was convicted of DUI based on the test. The Court ruled that the test did constitute a search or seizure under the Fourth Amendment, but that it was reasonable under an exigency exception: because of the natural metabolization of alcohol in the bloodstream, an immediate test was needed to preserve the evidence, and was allowable. The Court, citing Breithaupt, also emphasized the reasonableness and “ordinariness” of a blood test conducted in a hospital setting.

In 2013, however, Justice Sonya Sotomayor wrote the Court’s 5-4 plurality decision in McNeely, which distinguished its decision in Schmerber. In McNeely, the defendant had been arrested for DUI after failing field sobriety tests, but he refused to take a breath test; the arresting officer then transported him to a hospital where his blood was forcibly withdrawn. McNeely moved to suppress the blood test as being unconstitutionally obtained without a warrant. Missouri tried to argue that, based on Schmerber, drawing McNeely’s blood was per se constitutional without a warrant under the exigency exception.

But Sotomayor’s opinion emphasized that a blood draw constitutes an invasion of bodily integrity that implicates an individual’s “most personal and deep rooted expectations of privacy.” And as opposed to Schmerber, which was decided in 1966, getting a warrant isn’t as difficult today; the state’s position in McNeely failed “to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” Despite this, the Court did rule, however, that certain exigent circumstances could allow for a warrantless BAC test, but this should be examined on a case-by-case basis. And the Court noted that the opinion did not “undermine the governmental interest in preventing and prosecuting drunk-driving offenses,” maintaining that states have “a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws.”

In Birchfield, the Court will have to decide whether implied consent to chemical testing laws with criminal sanctions for refusal are one of these constitutional tools.

Lana Ulrich is associate in-house counsel at the National Constitution Center.

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