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Friends don't let friends drive drunk

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This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


In those 13 states, after a motorist has been arrested for suspected drunk driving, the police officer must inform the motorist of his/her implied consent to chemical testing of his/her blood, breath or urine.  The officer must also inform the arrested motorist that he/she has the ability to refuse testing BUT, if done, it is a crime to refuse and certain criminal penalties will be imposed separately from those imposed in a future DUI prosecution.  Essentially, it's damned if you do, damned if you don't.  If you refuse, it's a crime; if you consent and your BAC is higher than .08, it's also a crime.  California is not one of the 13 states, but North Dakota and Minnesota are.

At issue in the three cases decided this morning (Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi) was whether the criminal refusal laws violated motorists Fourth Amendment rights by forcing them to consent to warrantless searches.  The Court said warrantless breath tests are constitutional, but warrantless blood draws are not constitutional.

The opinion, authored by Justice Alito, distinguished chemical tests of a motorist's blood from chemical tests of a motorist's breath.  Urine is another type of bodily fluid than can be tested for BAC. The Court did not discuss the warrantless testing of urine because none of the three cases involved a urine test.  The Court created a categorical exception to the Fourth Amendment for warrantless searches incident to lawful arrest of a motorist's breath.  According to the Court, breath, unlike blood,  does not implicate significant privacy concerns and "is no more demanding than blowing up a party balloon."  The Court went on further to state that "[h]umans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs." Whereas a blood test is physically intrusive and a sample can be preserved by law enforcement authorities for future testing for information beyond that of BAC.

The Court weighed the effect of BAC tests on privacy interests against the state's need for such testing and concluded that because the impact of breath testing is slight and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving, and therefore those states that impose criminal penalties for refusing a breath test may continue to do so.  However, blood tests require a warrant and a state cannot criminally penalize the refusal to submit to such a test.

Justice Sotomayor (joined by Justice Ginsburg) concurred in the part of the opinion that requires warrants for BAC testing of blood.  But she disagreed with the Court's approval of warrantless testing of breath.  She would require a warrant for the chemical testing of ALL bodily fluids for evidence of BAC.  She states that it is not categorically impractical for an officer to obtain a warrant before measuring an arrested motorists BAC in his blood or breath. 

Justice Thomas concurred in part and dissented in part.  In his opinion, the warrantless testing of breath and blood is constitutionally permissible under the exigent circumstances exception to the Fourth Amendment's warrant requirement.  He disagrees with the distinction between breath testing and blood testing stating "[t]hat hairsplitting makes little sense.  Either the search-incident-to-arrest exception permits bodily searches to prevent the destruction of BAC evidence, or it does not."

CJLF filed a brief in Beylund v. Levi, No. 14-1507.  Beylund was lawfully stopped and arrested for suspicion of DUI.  He was generally uncooperative with law enforcement and refused all field sobriety testing claiming he had a "bad leg."  He agreed, however, to take an onsite preliminary breath test, but failed to provide an adequate breath sample.  He was then arrested, taken to the hospital and advised of North Dakota's implied consent law/criminal refusal penalty.  He agreed to a blood test, which resulted in a BAC of .250g/100ml - over three times the legal limit!  His driver's license was suspended for two years after an administrative hearing before the Department of Transportation.  Unlike Birchfield and Bernard, Beylund's case is civil and he is challenging the suspension of his driver's license.  He was not prosecuted for refusing a test. He submitted to a blood test after being advised that the law required his submission. The North Dakota Supreme Court held that his consent to testing was voluntary.  But, the U.S. Supreme Court vacated and remanded Beylund's case because the North Dakota Supreme Court was acting under the assumption that both breath and blood tests could be permissibly compelled.  On remand, North Dakota Supreme Court is to determine if Beylund's consent was voluntary under the "totality of the circumstances." If the North Dakota Supreme Court determines that his consent was not voluntary, it must determine if the blood test evidence must be suppressed under state law.  It's CJLF's position that the Federal exclusionary rule does not bar the introduction of evidence obtained in violation of a motorist's Fourth Amendment rights at a state administrative driver's license suspension hearing. Hopefully Beylund will remain an unlicensed driver after remand, and will stay off of the roadways if he's been drinking.

I consider this a win for both law enforcement and law abiding citizens.  


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