Laws in twelve states that impose criminal penalties on suspected drunk drivers who refuse to take a breath test to measure the alcohol in their bodies got a nod from the Supreme Court today. On a day that saw the Court deadlock in two cases, six of the Court’s eight Justices agreed that such laws do not violate the Fourth Amendment’s ban on unreasonable searches. But today was not a complete victory for the states: seven Justices also agreed that laws which impose criminal penalties for failing to take a blood test violate the Constitution.

In an opinion by Justice Samuel Alito, the Court began by noting the dilemma in which states had found themselves. Drunk driving takes “a grisly toll,” killing thousands of people every year and injuring scores more. To fight this problem, all fifty states have enacted laws that are known as “implied consent” laws: by driving on a state’s roads, you are deemed to have consented to testing if you are suspected of drunk driving. States have also imposed tougher penalties on drivers who are guilty of driving under the influence. But these stiffer sentences created a problem of their own: drivers, particularly those who have had a lot to drink or have prior drunk driving convictions, may opt to refuse the tests, because the consequences of doing so may be less severe than what they would face if convicted of drunk driving. This quandary led twelve states, including North Dakota and Minnesota, to pass laws that would make it a crime to refuse alcohol testing.

Under the Supreme Court’s earlier cases, the Court explained, the alcohol testing is clearly a search for purposes of the Fourth Amendment, for which a warrant would normally be required. However, a search without a warrant does not violate the Fourth Amendment if it falls within one of certain exceptions. And dating as far back as the colonial era, the Court observed, police officers have had the authority to conduct a search of a person whom they are arresting. But, the Court added, there is no “definitive guidance” from the era in which the Constitution was drafted that sheds any light on whether the Founding Fathers would have allowed a blood or breath test of a suspected drunk driver in conjunction with his arrest. Without that guidance, the Court ruled two years ago in a case involving the search of an arrestee’s cellphone, courts should instead look at the extent to which the search intrudes on the privacy of the person who is being arrested, as well as the extent to which the search is needed to promote “legitimate governmental interests.”

For breath tests, the Court concluded, the balance weighs in favor of allowing them without a warrant. There is no real physical intrusion on the driver’s body from the breath test, the Court explained. “The effort is no more demanding than blowing up a party balloon.” Breath tests provide police with only one piece of information – the concentration of alcohol in the driver’s breath – and police do not (because of the very nature of breath tests) retain a sample. On the other side of the equation, testing suspected drunk drivers is an important state weapon to fight drunk driving, while requiring a warrant to test every suspected drunk driver would swamp local courts without creating extra benefits – after all, the facts that would provide the kind of probable cause needed for a warrant would be “largely the same from one drunk-driving stop to the next,” as would the tests themselves.

By contrast, the Court concluded today, blood tests do not pass constitutional muster. Although they too play an important role in the war on drunk driving, they are “significantly more intrusive” than breath tests: they require the technician taking the sample to pierce the driver’s skin, extracting a sample that provides law enforcement officials with more information than a breath test, and which they can retain.

Justice Sonia Sotomayor agreed with the majority that the Constitution does not allow blood tests without a warrant, but she would have ruled that the breath tests also require a warrant. In an opinion that was joined by Justice Ruth Bader Ginsburg, Sotomayor acknowledged that states “must have tools to combat drunk driving.” But she saw no reason why requiring a warrant for breath tests would thwart these efforts. Among other things, she noted, there is already a significant lag time between when police make a drunk-driving arrest and when a breath test is administered; police officers could easily seek a warrant during “this built-in window,” she suggested.

Justice Clarence Thomas also parted ways with the majority, but for essentially the opposite reason as Sotomayor: in his view, neither the breath nor the blood test should require a warrant. Alcohol naturally dissipates from the driver’s bloodstream over time, which in his view creates the kind of “exigent circumstances” for which the Supreme Court has carved out another exception to the Fourth Amendment’s general warrant requirement. Therefore, Thomas concluded, once police officers believe that a driver is intoxicated, he reasoned, no warrant is needed to test the concentration of alcohol in his body.

Today’s decision will mean different things for the three men – Danny Birchfield and Steve Beylund of North Dakota and William Bernard of Minnesota – who challenged their convictions. Birchfield fared the best: he was convicted for refusing to have his blood tested without a warrant, so his conviction will fall. Bernard’s conviction will stand, because he was convicted for refusing to take a breath test. And Beylund agreed to (and then failed) a blood test after police had told him that he had no choice other than to take it. His case will now go back to the lower courts for them to consider whether his consent to the test was actually voluntary when, as the Court held today, the state could not actually require him to take the blood test.

More broadly, the Court’s ruling upholding breath tests without a warrant likely will take much of the sting out of its ruling against the states on the blood tests, as we can expect to see police officers avoid this problem by resorting to breath tests whenever possible. And with the Court having given a fairly resounding seal of approval to the breath tests, I would also expect to see more states adopt criminal penalties for refusing the breath tests soon.

Recommended Citation: Amy Howe, Opinion analysis: States prevail on breath (but not blood) tests without a warrant, SCOTUSblog (Jun. 23, 2016, 3:49 PM), https://www.scotusblog.com/2016/06/opinion-analysis-states-prevail-on-breath-but-not-blood-tests-without-a-warrant/