On June 23, 2016, the United States Supreme Court decided Birchfield v. North Dakota, 579 U.S. ____ (2016), which holds the government may not criminalize a driver’s refusal to submit to a blood test without a warrant. The government can, however, criminalize a driver’s refusal to provide a breath sample without a warrant if the officer has reasonable cause to believe a driver is under the influence.
This opinion consolidated two North Dakota cases with a Minnesota. In the lead case, Birchfield got into an accident. When the officer came to investigate, he formed the opinion that Birchfield may be under the influence. Birchfield performed poorly on field sobriety tests. He consented to a preliminary breath test which revealed a test result of 0.25, three times the legal limit. Birchfield was arrested and taken to the hospital to submit to a blood test. Once there, he was read the implied consent advisory telling him refusing to submit to the test is a crime and will result in a license suspension. Nevertheless, Birchfield refused to submit to the blood test. He eventually pled guilty to DUI refusal, but did so conditionally. He reserved his right to appeal. He argued the Fourth Amendment’s prohibition on unreasonable searches and seizures prohibited the State from prosecuting him for a refusal of consent to a search without a warrant. The North Dakota Supreme Court rejected Birchfield’s arguments. Birchfield then appealed to the U.S. Supreme Court.
In the companion North Dakota case, Beylund v. Levi, an officer observed Beylund driving all over the place. He almost hit a stop sign. He was unable to negotiate a turn. When the police officer stopped the car, the police officer noticed an open bottle of wine in the car and smelled a strong odor of alcohol coming from the driver. The driver also displayed poor balance. The officer arrested Beylund for DUI and asked him to consent to a blood draw. Unlike Birchfield, Beylund consented to the blood draw, which revealed a blood alcohol concentration of 0.25 percent, three times the legal limit. Beylund’s driver’s license was suspended as a result. He appealed, claiming his consent to the blood draw was coerced by the implied consent advisory, which threatened him with a crime and a license suspension if he did not acquiesce to the test. The North Dakota Supreme Court determined that Beylund’s consent was voluntary and upheld the license suspension. Beylund then appealed to the U.S. Supreme Court.
In the final consolidated case from Minnesota, Bernard v. Minnesota, law enforcement officers were called to a boat launch for a report of an intoxicated person driving and trying to pull a boat out of the water. When the officers arrived, Bernard was in his underwear. He admitted to drinking but not to driving the vehicle, although he was holding the keys to the truck in his hand. He smelled of alcohol and had bloodshot eyes and poor balance. He refused field sobriety tests. Ultimately, he was arrested for driving while under the influence. Law enforcement asked him to submit to a breath test at the police station: Bernard refused. He was then charged with Minnesota’s version of criminal DUI refusal. The trial court dismissed the charges, concluding the Fourth Amendment allowed Bernard to refuse a warrantless search. The Minnesota Court of Appeals reversed, and the Minnesota Supreme Court upheld their decision.
In hearing these cases, the Supreme Court decided categorically that the Fourth Amendment prohibits warrantless blood tests. Because breath tests are much less intrusive, and therefore more reasonable, the Supreme Court decided law enforcement can constitutionally criminalize a driver’s refusal to submit to a breath test. The majority of the Supreme Court compared breath tests to other minimally intrusive searches like fingernail scrapings, which had previously been upheld. Weighing the minimal intrusion of a breath test against a person’s limited privacy interest in breath they readily expel, the Supreme Court found that a breath test is a “reasonable” Fourth Amendment search. The Supreme Court justified upholding warrantless breath tests in this case under the “search-incident-to-arrest” doctrine. That is, a police officer can generally search a person and their immediate vicinity after the person has been lawfully arrested.
In applying its holdings to the cases before the Court, Birchfield’s conviction was reversed. He cannot be prosecuted for refusing a warrantless blood test. Bernard’s conviction was affirmed, as he refused a lawfully requested breath test. In Beylund’s case, the Supreme Court remanded the case to the North Dakota Supreme Court to reconsider whether Beylund’s consent to take the blood test was voluntary in light of their decision in Birchfield.
So, what does that mean for pending DUI refusal cases? If the officer requested a blood test and the person refused, those prosecutions will likely be dismissed. If the person consented to a blood test, a person may be able to argue the consent was involuntary in light of the implied consent advisory read to them threatening the driver with a crime. If the officer requested a breath test, however, the driver may be out of luck. After this decision, warrantless breath tests in the DUI context are categorically constitutional as a search incident to arrest. For those drivers, their charges will likely be upheld.
Moreover, the question becomes how North Dakota will handle this decision legislatively. North Dakota’s legislature meets every two years. They will meet again in late fall of this year and wrap up their legislative session in early spring 2017. Most laws enacted or modified in that legislative session become effective August 1, 2017. The legislature can, however, pass “emergency legislation” to address immediate concerns before then. Those laws become effective when the law declares them to be effective, which means it may be before that August 1, 2017 date. My expectation is that the Attorney General’s office will be furiously drafting legislation on an emergency basis as quickly as next week.
This is really a complicated issue. There undoubtedly will be further litigation in this area. If you have been charged with a DUI, give Nick Thornton at Fremstad Law a call at 701-478-7620 or firstname.lastname@example.org.
The full text of the Birchfield opinion is available here.
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