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Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 

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So, if a DUI suspect gives a breath sample (a reasonable search incident to arrest) and, in the process leaves sufficient saliva on the mouthpiece to permit DNA testing, would the government's testing of that saliva to obtain a DNA profile for CODIS constitute a "search"? And, if so, would that search be "reasonable"?

See People v. Thomas (2011) 200 Cal.App.4th 338.

Should the government routinely be testing a DUI suspect's saliva for DNA under these circumstances? Virtually no physical intrusion beyond the obtaining of the breath sample (which itself is a reasonable search incident to arrest). And huge potential benefit to public safety.

I don't necessarily agree with Justice Alito's statement: "A breath test, by contrast, results in a BAC reading on a machine, nothing more. No sample of anything is left in the possession of the police." (slip op., at 22).

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