By Marc Emden, Esq.
On June 23, 2016, the Supreme Court decided the case of Birchfield v. North Dakota. As we described in our previous blog on criminal law, the Court in Birchfield took up the issue of whether under the United States Constitution, a state can punish someone by suspending their right to drive simply because they refused to take a blood or breath. Emdenlaw attended the oral argument for the case before the U.S. Supreme Court along with other Rockville criminal law attorneys.
Many of you already know that laws (Implied Consent Laws) exist in every state and federal territory; these laws generally say that, should a driver be stopped by the police on suspicion of driving while under the influence of drugs or alcohol, he is deemed to have consented to the testing of his blood alcohol content (BAC) by breath or blood simply by driving in that state in the first place
If the driver nonetheless refuses to submit to testing, he is punished with administrative penalties, such as the suspension of his driver’s license for a period of time. However some states, such as Minnesota and North Dakota as detailed in Birchfield, have gone a step further and make it a crime simply to refuse to take the test. Birchfield attempts to balance the states’ interest in ending drunk driving, and the individual’s 4th Amendment right to be free of the government’s warrantless searches. Maryland makes it a crime to refuse only if you are convicted of the underlying DUI.
The Supreme Court ultimately decided that a warrantless breath test is permitted while a warrantless blood test is not. They wrote: “having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great. … We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”
To explain its decision, the Court brought in the well-established legal doctrine known as Search Incident to Arrest (read about this doctrine and other search and seizure basics in our article). This doctrine holds that once police lawfully arrest a person, they may search him and his immediate surroundings for two reasons: (1) to confiscate any weapons, thereby ensuring officer safety, and (2) to prevent the loss or destruction of evidence. In Birchfield the Court ruled that while the arrestee has no control over his BAC, the natural lessening of alcohol in the blood over time requires the need for police to the preserve evidence of recent alcohol or drug use by using a fast means to collect breath or blood test results.
The Court held that there is a big difference between one’s right to privacy over a breath test and a blood test. A breath test requires minimal intrusion and “is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”
Since a blood test,contains and has the potential to reveal, much more personal information than does a breath sample, it requires either a warrant, or consent of the arrestee, or the presence of emergency circumstances.
Practically speaking, this means that states may make it a crime for a driver to refuse to submit to breath test, but may not do the same for a blood test. This may have some effect on the use of blood tests going forward, particularly when it comes to driving while under the influence of drugs or, taking drugs in combination with alcohol, cases. It will not change the cops’ use of breath tests.
Finally, the Court stated that a breath test is unintrusive, especially when compared with a blood test or other tests, such as a cheek swab, because “no sample of anything is left in the possession of the police.” This may or may not be true given the ability of the police to use GPS tracking without a warrant.
The US. Supreme Court only takes cases of national significance and its ruling has a direct effect on the criminal laws in Maryland.