Breath Tests Incident to Arrest are Reasonable but Prosecution for Refusing a Blood Test Goes Too Far

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:

• Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
• Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

Three cases were consolidated for oral argument and decision in Birchfield.

Blood test refusal. In Birchfield v. North Dakota, the defendant was arrested for driving while impaired.  The officer advised him that North Dakota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Birchfield refused to let his blood be drawn. He was thereafter prosecuted for his refusal, a misdemeanor crime. The North Dakota Supreme Court affirmed his conviction.

Breath test refusal. In Bernard v. Minnesota, the defendant was arrested for driving while impaired.  The officer advised him that Minnesota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Bernard refused to submit to a breath test. He was prosecuted criminally for his refusal. Because he had four prior impaired driving convictions, Bernard’s refusal was punishable by up to seven years imprisonment. The Minnesota District Court dismissed the charges on the basis that warrantless breath testing was not permitted under the Fourth Amendment.  The state court of appeals reversed, and the state supreme court affirmed the court of appeals.

Blood test with consent. In Beylund v. Levi, the defendant was arrested for driving while impaired and was taken to a hospital.  There he was informed that under North Dakota law, he was required to submit to chemical testing and that failure to do so was a crime. Beylund agreed have his blood drawn and analyzed. Because the resulting alcohol concentration revealed a blood alcohol concentration of 0.25, Beylund’s license was suspended for two years.  He appealed from the suspension, arguing that he did not voluntarily consent to the search, but only did so to avoid criminal prosecution for refusing. The North Dakota Supreme Court rejected Beylund’s argument.

Though their circumstances differed, each petitioner’s claim rested on his assertion that the criminal law cannot compel a person to submit to chemical testing unless a warrant is issued authorizing such testing.

Permissible search incident to arrest?  Writing for the majority, Justice Alito first considered whether the chemical testing of an impaired driving suspect’s breath or blood could be carried out as a warrantless search incident to arrest. The Court explained that the authority to search a person incident to arrest was a categorical rule that did not depend upon the characteristics of a particular arrestee.  The Court then employed the test it had used in Riley v. California, 573 U.S. __ (2014), to determine whether a given type of search should be exempted from the warrant requirement:  Does the need for the search in light of a legitimate government interest outweigh the individual’s privacy interest?

Breath tests. The Court characterized the physical intrusion involved in breath testing as “almost negligible,” and observed that breath tests reveal “only one bit of information,” namely “the amount of alcohol in the subject’s breath.” Slip op. at 20-21. Moreover, the court opined that participation in a breath test does not greatly enhance the embarrassment already inherent in any arrest.

Blood tests. Blood tests are different. The process is “significantly more intrusive than blowing in a tube” as it requires piercing of the skin. Slip op. at 23. And even though such tests involve little pain or risk, people do not relish the process. Moreover, blood samples can provide information beyond a person’s blood alcohol concentration.

State’s interest. The states and the federal government have a paramount interest in keeping public highways safe.  Alcohol consumption is the leading cause of traffic deaths. To deter driving while impaired, states have adopted per se blood alcohol concentration levels and have adopted implied consent laws to induce drivers to submit to chemical testing. States first punished refusal by suspending a driver’s driving privileges.  Some states then upped the ante, prosecuting such refusals as a crime. These laws are designed to provide an incentive to cooperate with testing and thus serve an important function.

Holding. Weighing these interests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The Court found no justification, however, for demanding a blood test as a search incident to arrest. Blood tests are significantly more intrusive, and the State may require the less invasive alternative of a breath test.

Implied consent? The Court next considered whether a warrantless blood tests could be justified based on a driver’s legally implied consent. Noting that prior opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” the Court cautioned that “nothing we say here should be read to cast doubt on them.” Slip op. at 36.

The Court distinguished the laws in the cases before it from the general concept of implied consent laws with civil penalties.  North Dakota and Minnesota not only mandate blood testing but also impose criminal penalties for the refusal to cooperate.  The Court explained that the consequences to which motorists may be deemed to have consented by driving on public roads must be reasonable. The Court concluded that deeming a driver to have consented to a blood test under threat of criminal prosecution was an unreasonable requirement.

Applying its conclusions to the cases before it, the court ruled as follows:

Birchfield: The blood draw that Birchfield refused cannot be justified as a search incident to arrest or based on implied consent. Moreover, there was no exigency. Because Birchfield was threatened with an unlawful search, the Supreme Court reversed his conviction for refusing that search.

Bernard: The breath test that Bernard refused was a permissible search incident to arrest. Officers did not need a warrant to carry out the test, and Bernard had no right to refuse search. Thus, the court affirmed Bernard’s conviction.

Beylund: Beylund submitted to a blood test after being warned that if he did not, he would be criminally prosecuted. That warning was partially inaccurate as he could not lawfully be prosecuted for such a refusal. Thus, the Supreme Court remanded Beylund’s case for a determination by the state court as to whether Beylund’s consent was voluntary.

Birchfield fails to coherently explain the theory of implied consent. The Court did not address whether a person’s refusal to submit to a warrantless blood test may be sanctioned by the revocation of a person’s license. Different parts of the opinion point to different conclusions about that issue. On the one hand, Birchfield went out of its way not to throw shade on implied consent laws that impose civil rather than criminal penalties for refusing chemical testing. That portion of the opinion indicates that implied consent laws that impose civil or administrative penalties do not abridge a suspect’s constitutional rights. On the other hand, Birchfield’s consideration of whether chemical testing is a search incident to arrest suggests that implied consent laws don’t dictate what measures are reasonable under the Fourth Amendment.  And if it isn’t reasonable under the Fourth Amendment to require a person’s submission to a warrantless blood test, then how can a person be sanctioned for that refusal, regardless of whether the sanction is civil or criminal in nature?

Birchfield further indicates that consent is to be determined based on the totality of all the circumstances rather than by a legal construct that implies a driver’s consent to such testing. Many courts with implied consent laws have assumed the voluntariness of a suspect’s acquiescence to testing when it follows implied consent warnings. But see Williams v. State, 771 S.E.2d 373 (Ga. 2015) (discussed here, holding that impaired driving suspect’s agreement to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement).

Impact in NC. Unlike North Dakota and Minnesota, North Carolina does not impose criminal penalties for refusing implied consent testing. Instead, G.S. 20-16.2 requires license revocation (and renders the fact of refusal admissible at the person’s criminal trial) as a consequence of such a refusal. Thus, much of what the court decided in Birchfield will not affect NC.  The Court’s holding that warrantless blood testing under a state’s implied consent law is not permissible as a search incident to arrest is, however, significant for NC. Birchfield makes clear that law enforcement officers in NC who desire to test an impaired driving suspect’s blood for evidence of impairment must obtain a warrant, a person’s consent, or rely upon exigent circumstances to lawfully conduct such testing. Thus, Birchfield affirms the court of appeals’ conclusion in State v. Romano, ___ N.C. App. ___, 785 S.E.2d 168 (2016) (discussed here) that the warrantless withdrawal of blood from an unconscious impaired driving suspect runs afoul of the Fourth Amendment, notwithstanding provisions of NC’s implied consent law that authorize such testing. And, as noted above, Birchfield may also broaden the inquiry into whether a suspect’s consent to testing was voluntary.