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SCOTUS: Warrantless alcohol breath tests reasonable, blood tests not

Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)

Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?

The five-justice majority opinion, authored by Justice Alito, sees it like this: drunk driving takes a “grisly toll on the Nations’s roads,” and the reduction of this toll is greatly aided by laws that criminalize driving with more than a certain BAC. (Slip op. at 1-8). To enforce such laws, of course, police need to be able to determine a driver’s BAC, but as drunk driving penalties have stiffened over the past decades, motorists have a correspondingly greater incentive to refuse chemical tests. To combat this, some states have gone beyond imposing civil penalties (like license revocation) to enforce their “implied consent” laws and made it a crime to refuse a test. (Slip op. at 7-8). Whether this is permissible–that is, criminalizing a person’s refusal to consent to a search–turns, first of all, on whether the search would violate the Fourth Amendment in the absence of consent.

The search incident to arrest doctrine generally permits an arresting officer to search the person and whatever items he or she is carrying. Per the majority, for a search not contemplated by the founders (e.g. scrolling through a cell phone or, as here, chemical tests for alcohol) whether it falls within this exception is determined “‘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.” (Slip op. at 19-20).

The governmental interests are as summarized above, fleshed out in considerably more detail. The degree of intrusion, in the majority’s view, varies by the type of search. Breath tests simply require the arrestee to exhale which, let’s face it, he or she was going to do anyway, and “[h]umans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs.” (Slip op. at 21).

Speak for yourself! (If that’s how you want to squander the precious air in your lungs.)

Blood tests, on the other hand, “‘require piercing the skin’ and extract a part of the subject’s body…. And while humans exhale air from their lungs many times per minute, humans do not continually shed blood.” (Slip op. at 22). The difference in intrusiveness justifies a different constitutional rule: henceforth, the Fourth Amendment provides no barrier to a warrantless breath test, and thus states may criminalize a person’s refusal to provide a sample. For blood tests, on the other hand, the warrant requirement still applies (absent exigent circumstances or some other exception) and the government may not impose a criminal penalty for a person’s refusal of such a test (again, absent a warrant or a valid exception).

Wisconsin imposes only civil penalties for refusals, which the majority makes clear are not before the Court, “and nothing we say here should be read to cast doubt on them.” (Slip op. at 36). Our court of appeals has twice rejected claims that the state’s refusal scheme renders a motorist’s consent to testing involuntary. Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891; State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745. In any case, given the Court’s wholesale blessing of warrantless breath tests, we can likely expect to see more of them and fewer blood tests, at least where the arrestee is willing to cooperate.

There are two concurrence/dissents, taking opposite positions. Justice Thomas would hold that no warrant is required to take either breath or blood, because, contra McNeely, the natural dissipation of alcohol in the bloodstream constitutes an exigent circumstance. Justice Sotomayor, joined by Justice Ginsburg, would require warrants for both kinds of tests. In her view, a warrant is the constitutional mandate, and the majority gets things backward by assuming there must be some special policy justification for imposing a warrant requirement, rather than forgoing one. She further argues that the McNeely model–that is, requiring a warrant absent exigency–gives the police ample means to conduct tests under real world conditions, making the majority’s claims about the pressing need for warrant-free testing specious.

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