The U.S. Supreme Court recently heard oral argument in the case of Birchfield v. North Dakota. The issue that the Court confronts in Birchfield is whether a state law may, absent a search warrant, validly attach criminal penalties to a DUI suspect’s refusal to undergo a chemical test of the suspect’s blood, urine, or breath to determine alcohol concentration. In this column, I will consider some of the issues that arose at oral argument and how they might be resolved.

Missouri v. McNeely

The first thing to note about the issue of warrantless blood-alcohol-content examinations is that the Supreme Court relatively recently (in 2013) had occasion to rule on a related issue in Missouri v. McNeely. In McNeely, as I discussed in a column on Verdict at the time, the case concerned police authority to administer a blood test (for alcohol) without a warrant rather than the government’s authority to criminally punish a refusal to consent to one of the chemical tests implicated in Birchfield. Specifically, the question in McNeely was whether police may subject a suspect to a blood test, without a warrant, on the basis of probable cause to believe that he has been driving under the influence of alcohol.

The Court answered the McNeely question in the negative, rejecting the proposed across-the-board exigency argument for performing the blood test as soon as possible due to the possibility that the body might metabolize the alcohol away while the police are in the process of seeking a warrant. Because the intrusion of taking a suspect’s blood is great and because it has become relatively easy to obtain a search warrant quickly, the Court concluded that there is no basis for a per se exception to the warrant requirement for taking blood from a DUI suspect. Indeed, obtaining a warrant will often take no longer than the time involved in bringing the suspect to a hospital (where police, as a practical matter, need to go to have a blood alcohol test administered).

At the time, I argued in my column that the Court might have made an error, for one of two reasons. First, at least as a general matter, a person who is eligible for arrest for drunken driving does present a prima facie exigent circumstance, given that he will be metabolizing the evidence of his crime away with each passing minute. Second, the information with which an officer would seek a search warrant to take blood would—unlike in other sorts of search cases—be rather uniform in a suspected drunk driving situation. The officer would cite the weaving on the highway, the smell of alcohol, the bloodshot eyes and slurred speech, and perhaps the inability to walk a straight line. Given this uniformity, it is predictable that warrants for a blood test would routinely be forthcoming in those cases in which a police officer has sufficient evidence to arrest and to seek a warrant. Therefore, I proposed, one gains little in the way of privacy from the intercession of the neutral and detached magistrate issuing a warrant. There are not, as there might be in other cases, subtle distinctions to be drawn between scenarios where there is versus where there is not probable cause, such that a magistrate might actually make the difference between an authorized and an unauthorized blood alcohol content test.

How the Breathalyzer is Different and Why/Whether the Difference Matters

Though Birchfield in theory implicates blood tests, urine tests, and breathalyzers, the Court in argument focused much energy on the breathalyzer test. If it turned out that a warrantless breathalyzer would be lawful under the Fourth Amendment, then it would follow logically that a state could criminally punish a refusal to submit to such a (lawful) test. But the Court wanted to assess the answer to the predicate question: Would a warrantless breathalyzer test, unlike a warrantless blood test, be consistent with the demands of the Fourth Amendment?

One difference between the breathalyzer and the blood test, a difference that the respondents emphasized during oral argument, is that requiring someone to breathe into a straw is far less intrusive than sticking a needle into the person and drawing blood. The latter can be frightening and physically painful in a way that the former is not. The latter also could, in theory, provide an opportunity for investigating highly personal information about the person tested, because a person’s blood contains more than just alcohol. In short, the breathalyzer test is less intrusive than the blood test, and that lesser intrusion might be understood to authorize a lesser level of protection for the privacy involved, such as a probable cause requirement but no warrant requirement. And if that were the conclusion the Court were to reach, then at least as applied to refusals to take a breathalyzer test, criminal penalties would appear to be legitimate.

To reiterate, however, the question at issue in Birchfield is not directly about whether a warrant is required to perform a breathalyzer test. In fact, respondents made a point of saying at the argument that without the subject’s cooperation, it may be impossible to perform a breathalyzer test at all, whether in the presence or in the absence of a warrant. The question is instead whether a state may, absent a warrant, attach criminal penalties to a suspect’s failure to consent to a breathalyzer test.

A Search Versus a Punishment for Refusing a Search

According to respondents, the distinction above—between authorizing a search and authorizing a penalty for refusing a search—is an important one. This is because it may be unlawful for the police to take someone’s blood without a warrant, as the Court held in McNeely, but the law may still attach costs to the refusal to give blood (or to otherwise provide blood/alcohol evidence upon request). Costs might include suspension of a license or the use of the suspect’s refusal as evidence at trial. And according to respondents, costs should also be able to include criminal penalties.

The argument for this distinction (between an authorized search and an authorized penalty for refusal to consent to a search) travels along two tracks. The first track is the argument that by driving on the roads of a state with a statute that punishes a failure to submit to an alcohol test, a driver impliedly consents to submitting to such a test when arrested for DUI and upon probable cause. The second track is the notion that a state may condition the use of its roads on drivers’ submitting to alcohol tests. Neither of these tracks is very convincing when the penalty for failing to submit is criminal in nature.

The implied consent argument is unpersuasive because it is fictional. No one in fact consents to searches just because they drive in a particular state. A consent search, as the Court has explained in Schneckloth v. Bustamonte, must be voluntary, and there is nothing voluntary about being given the choice of either consenting to a blood test or having to suffer criminal penalties for failing to do so.

Similarly, the “condition of using our roads” argument is unpersuasive because to take such an argument seriously could potentially eliminate all the protections that the Supreme Court has announced for privacy in one’s vehicle. Though driving is not itself a constitutional right, many of the Court’s announced rights of privacy from police intrusion have emerged in the context of vehicle searches, and the Court has never hinted that such rights could be simply dispensed with by maintaining that driving is a privilege conditioned on a blanket consent to search. Again, the Court has approved of costs attached to refusals to submit to testing (such as license suspension or the use of the refusal in evidence) but to directly punish the refusal criminally is to negate the underlying right altogether.

My expectation is accordingly that the Supreme Court will rule on when police do and do not need to obtain a warrant before performing a search. It has already said that drawing blood generally requires a warrant, and it will tell us now at least whether using the breathalyzer does as well (and perhaps whether a urine test does). If these tests do require a warrant, then the Court will likely invalidate state criminal penalties for people who refuse to submit to a breathalyzer (or a urine test) when police lack a search warrant. And for blood draws, the Court will accordingly find criminal penalties illegitimate for those who refuse consent when police lack a warrant.

Easy to Get a Warrant and Necessary Delays

So, if I am correct in my reading of the justices, the key yet-unanswered question will be whether a warrant is required for a breathalyzer test. There was much discussion, back and forth, between the justices and the parties, about how long it might take for police to obtain a search warrant in various locales and whether the waiting time is such that evidence would truly be lost because of a warrant requirement. Though there was equivocation, the respondents seemed prepared to acknowledge that at least in many places, it is possible to obtain a warrant in a relatively short time. They also acknowledged that most breathalyzer tests are administered at the police station, rather than on the road.

This latter acknowledgement was important because one of the winning arguments in McNeely was the reality that police cannot actually perform a blood test on a DUI suspect immediately anyway—even if they have no need for a warrant—since they must take the suspect to a hospital for the procedure, which journey itself uses up time. During this time, then, police will often be able to contact a magistrate and obtain the needed warrant.

Because—contrary to the prior assumptions of some of the justices—a breathalyzer test generally will also take place in another location (not by the side of the road), it follows that delay is a built-in part of obtaining blood alcohol content information from a suspect, whether the police are employing a blood test or a breathalyzer test. One cannot avoid delay, so the issue then becomes whether it is acceptable for police to perhaps be delayed a bit longer (and perhaps not even that) while seeking a warrant and traveling to the relevant locale for testing at the same time. Since some parts of the country are able to process warrants rapidly, it would seem that the inability to do so in other parts of the country might reflect a choice about resource allocation, a choice that some justices indicated should not excuse compliance with the ordinarily governing Fourth Amendment warrant requirement.

Other Warrant Exceptions

There was some discussion about the possibility of announcing another exception to the warrant requirement for breathalyzer tests, comparable to the “special needs” exceptions associated with train accidents. Though initially enthusiastic about this possibility, however, the justices seemed decreasingly so as the argument went on and they learned that breathalyzer tests are not generally administered immediately, at the side of the road. This seemed to matter to them because a hypothetical roadside breathalyzer might successfully exonerate DUI suspects and thus serve an additional interest, beyond that of gathering evidence.

There was also discussion during argument of the possibility that a breathalyzer test might represent a search incident to arrest (like the patdown of an arrestee and the collection of evidence and potential weapons on his person and within his wingspan). But this argument did not seem to catch on for most of the Court, particularly since the dual rationales for search incident to arrest—protecting officers and preventing suspects from deliberately destroying evidence—do not map that well onto the body’s involuntary metabolism of alcohol that takes place over time.

How Will the Court Rule?

I must acknowledge, before venturing a prediction, that the Court could decide the case in a number of ways that would surprise me. First, it might hold that even when a warrant is required to perform an alcohol test (whether blood, breath, or urine), a state may still criminally punish a refusal to consent to such a test. In so ruling, it might say that even though a person has a constitutional right, he does not necessarily get to enjoy that right free of any costs (including criminal costs). Or the Court might say that driving on the roads impliedly consents to alcohol tests on suspicion of DUI (subject to criminal penalties) or that a state may condition use of its roads by drivers on submission to such tests (on pain of criminal penalties). It may, alternatively, hold that unlike a blood draw, a breathalyzer test is sufficiently unintrusive that it may be performed without a warrant (and that a state may therefore criminally penalize failure to submit to it, even absent a warrant).

My prediction, however, is that the Court will take the opportunity of this case to announce that any test of a person’s internal state, whether through a blood draw, a breathalyzer, or a urine sample, requires a search warrant in the absence of exigent circumstances. All three forms of alcohol tests are conceded to be “searches,” and searches—especially searches of a person’s internal state—generally require a warrant. The Court seems wary of announcing new warrant exceptions without a good reason, and the facts of this case do not seem to strongly suggest a basis for a new exception. The Court will also, I believe, tell us that so long as a person has a Fourth Amendment right not to be searched, it follows that the person may not be criminally punished for asserting that right not to be searched, even if noncriminal costs—such as license revocation or the use of the refusal in evidence—may be imposed for the exercise of rights. And although I initially thought the Court might have been wrong to require a warrant for a blood draw in DUI cases, I am convinced that absent a revisiting of McNeely, the Court would be right to protect against even breathalyzer tests with a warrant requirement that does not admit of elimination through a coercive consent condition. In truly exigent circumstances, of course, police will be able to skip the warrant step, but otherwise, I predict and would suggest, blood alcohol content tests may not be performed, nor may a refusal to consent to them be criminally punished, consistent with the Fourth Amendment right against unreasonable searches and seizures.