The Supreme Court is expressing doubts about laws in at least a dozen states that make it a crime for people suspected of drunken driving to refuse to take alcohol tests.
The justices heard arguments Wednesday in three cases challenging North Dakota and Minnesota laws that criminalize a refusal to test for alcohol in a driver’s blood, breath or urine if police have not first obtained a search warrant.
Drivers prosecuted under those laws claim they violate the Constitution’s ban on unreasonable searches and seizures. State supreme courts in Minnesota and North Dakota upheld the laws.
The justices pressed lawyers representing the states on why they can’t simply require police to get a warrant every time police want a driver to take an alcohol test. Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant over the phone in Wyoming and 15 minutes to get one in Montana.
Thomas McCarthy, the lawyer representing North Dakota, said the state “strikes a bargain” with drivers by making consent to alcohol tests a condition for the privilege of driving on state roads.
But Justice Anthony Kennedy said the states are asking for “an extraordinary exception” by making it a crime for people to assert their constitutional rights. He expressed frustration when McCarthy refused to answer repeated questions about why expedited warrants wouldn’t serve the state just as well.
Kathryn Keena, a county prosecutor representing Minnesota, suggested some rural areas may have only one judge on call, making it too burdensome to seek a warrant every time. She said even if a warrant were procured, a driver could still refuse to take the test and face lesser charges for obstruction of a warrant than for violating drunken driving test laws.
Justice Sonia Sotomayor said the state could simply change the law to make penalties more severe for obstruction.
Several justices seemed to be searching for a middle ground. Some suggested to Charles Rothfeld — the lawyer representing challengers to the laws — that requiring a breath test without a warrant might be allowed because it’s far less invasive than a blood test.
Justice Elena Kagan called the breath test “about as uninvasive as a search can possibly be” and suggested it could be part of a permissible search during an arrest.
Rothfeld insisted that collecting breath was just as intrusive as collecting blood.
The Obama administration is supporting the states. Deputy Solicitor General Ian Gershengorn told the justices they should not assume warrants “are available 24/7.”
“That is not the case in the real world,” Gershengorn said. He said it may be the case for terrorist attacks, but not for routine drunken driving cases.
In the Minnesota case, William Bernard was arrested on suspicion of drunken driving and taken into custody and refused to take a chemical test at the police station after he was arrested. A divided Minnesota Supreme Court ruled the law was valid and that officers could have ordered a breath test without a warrant as a search conducted while performing a valid arrest.
Under the Minnesota law, a first-degree count of refusal to take a breath test carries a mandatory minimum sentence of three years in prison.
In North Dakota, refusal to take an alcohol test carries the same criminal penalties as driving under the influence. The state’s highest court upheld the law against a challenge from Danny Birchfield, who was arrested after he drove his car into a ditch and failed a field sobriety test. He refused to take more tests and was convicted under the state’s refusal law, which counts as a misdemeanor for a first offense.
A second case from North Dakota involves Steve Beylund, a driver who was stopped on suspicion of drunken driving and consented to a chemical alcohol test. State courts declined to suppress the evidence from that test.
Other states that criminalize a driver’s refusal to take an alcohol blood test include Alaska, Florida, Hawaii, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.
The Associated Press contributed to this article.
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I have no problem with implied consent laws. A drunk person will eventually become sober enough to pass a blood test if enough time is given.
If the Court finds the current laws to be unconstitutional maybe the states can rewrite them to allow a drunk driving conviction based on officer observations. Call it a presumed guilty law–if you are caught drunk driving and fail a field sobriety test you can take a blood test to prove your sobriety or the officer’s observation becomes enough proof for a drunk driving conviction. I don’t support allowing a stubborn drunk driver be able to endanger innocent people. Driving is a privilege not a constitutional right.
Justin W. you are correct. In my years in law enforcement I never had a suspect refuse a blood or breath test.
I made one hell of a lot of DUI arrests. It use to be in Pa. a 6 month suspension if you refuse. Don’t know what it is
now but will check. I don’t have to worry I don’t drink. I take that back, I did have several that refused.
THEY WERE ALL DEAD. Still got the results.
As for those IDIOTS IN BLACK ROBES GET ON THE ROAD AND SCRAPE A DEAD BODY OFF THE RAOD OR HAVE ONE DRIVING AT YOU. SEE HOW THEY WOULD REACT.
Justin-
I find that the court did not address what i consider to be the crucial part of any drunk-driving arrest: was anyone damaged in their life, liberty or property? If not, then where’s the crime? Where’s the damaged party? Who was injured, and how? If no one was injured, if no property damage was inflicted on anyone, if no one’s liberty was deprived or even infringed upon – who, exactly, has cause for lawful complaint? The State? The “State” is a fictional entity which cannot be placed upon the stand and cross-examined, ergo it’s not a lawful complainant. Public Policy? Public policy is also unavailable to be cross-examined, so a violation of Due Process to impose it upon defendants.
OTOH, if there WAS damage to anyone’s life, liberty, or property and there’s a refusal to take a sobriety test, throw the book at them and put them UNDER the jail.
OMG, i missed your “presumed guilty” law you apparently support. i know that it’s considered fashionable these days, what with drug forfeiture laws, and “presumed guilty upon accusation” laws involving domestic abuse and child molestation, but THINK about it for one FREAKIN’ SECOND, willya? How to you prove your innocence? How do you prove you DIDN’T do something? Why shouldn’t the burden of proof be on the State’s prosecutors to prove “beyond a reasonable doubt and to a moral certainty” when they have the power and money of the State to back their case, while the defendant is more-often-than-not unable to access any of the tools the State has at it’s disposal?
That’s been JUST since before the founding of this country, and for justice to continue and prevail, that principle, that axiom of law, that all accused are to be presumed innocent until PROVEN guilty, should remain FIRMLY in place!
I agree partly with “Cobnstitutionalist” but only partialy. I agree that “presumed innocent” is probably one of the the most fundamental freedom that we have in the legal system in this country. But I disagree with his statement “no injury no crime”. Driving drunk is a threat of assault to all other people, attempted assault with a deadly weapon at the minimum, maybe attempted murder. For instance, if I were to discharge a firearm at you I would be arrested and probably convicted of attempted murder. And if it was with a firearm that I brought to where I shot at you I’d probably be charged with attempted premeditated murder. And if I successfully killed you the charge would be murder in the first degree. Not manslaughter. Compare this to a drunk driver. The person knowingly imbibes, knows ahead of time that his/her ability to drive is going to be compromised. Knows in advance that it will be illegal for him/her to drive while having alcohol in hisd/her system more than the legal limit. I think that information should be sufficient to prove premeditation. So we have a person that knows he/she will be operating a deadly weapon (a car) andknows that he/she will be in a condition likely to cause injury or death. And he/she still does it. So doing that act is a premeditated act of attempted murder, much the same as a person that wants to shoot someone but needs a drug to steady his/her hand so he/she won’t miss. A drunk driver has attempted to commit assault with a deadly weapon. A drunk driver that injures someone has committed attempted murder. And a drunk driver that kills someone has committed premeditated murder. A car is at least as deadly as a firearm. The way the laws are now I could decide to kill someone, either that I know or even just a random person just for the “thrill” of killing someone. All I need to do to have a light penalty is get drunk. Stupid!