Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?

In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.

So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?


First, a clarification. Schmerber was not an “implied consent” case. In other words, Mr. Schmerber’s blood was not withdrawn pursuant to a statutory scheme that required the State to first warn him of the consequences of his refusal to consent and then to request that he submit to testing. Instead, Mr. Schmerber’s blood was withdrawn by an officer who had probable cause to believe Schmerber had been driving while impaired and who had reason to believe that the delay associated with obtaining a warrant would cause him to lose evidence of that impairment.

Schmerber held that the withdrawal of the defendant’s blood in these circumstances did not violate the due process clause or the Fourth Amendment. The court said it would “be a different case” for purposes of the due process analysis if the police “refused to respect a reasonable request to undergo a different form of testing.” Schmerber 384 U.S. at 760 n.4. With respect to the Fourth Amendment, the court concluded that the test and the manner in which it was carried out were reasonable. The court noted that blood tests were commonplace and, for most people, involved “virtually no risk, trauma, or pain.” The court then flagged the unanswered question recited above. Id. at 771.

The implied consent question. Most blood draws in implied consent cases are requested and, if the suspect acquiesces, carried out under the state’s statutory implied consent scheme rather than in the manner the defendant was tested in Schmerber.  So when courts are called upon to consider the unanswered Schmerber question, they generally must engage in a two-part inquiry.  First, does the state’s implied consent statute afford suspects the right to select the type of test? (North Carolina’s implied consent statute, like many other states, does not. See G.S. 20-139.1(b5).)  Second, if the statutory scheme does not afford such a right, is the ensuing test and/or the statutory scheme constitutional?

How have courts answered the question? Several courts have rejected the claim that a defendant has a constitutional right to the least intrusive test or to the test of his choosing.

  • Municipality of Anchorage v. Ray, 854 P.2d 740, 748-49 (Alaska Ct. App. 1993) (rejecting the defendant’s argument that in carrying out implied consent testing the state must employ the least intrusive method capable of testing a motorist’s blood alcohol level; construing the Supreme Court’s decisions in Breithaupt v. Abram, 352 U.S. 432 (1957), Schmerber, and South Dakota v. Neville, 459 U.S. 553 (1983) to permit the State to leave the choice of chemical test to the arresting officer as due process does not require the police to begin with the least intrusive available method)
  • Ritschel v. City of Fountain Valley, 40 Cal. Rptr. 3d 48, 56 (Cal. App. 4th 2006) (officers’ failure to honor plaintiff’s request for a breath test when carrying out a blood test under California’s implied consent law did not violate plaintiff’s constitutional rights even though state statute required that the arrestee be permitted to choose the type of chemical test)
  • Kostyk v. Com., Dep’t of Transp., 570 A.2d 644, 646-47 (Pa. 1990) (rejecting defendant’s argument that the state implied consent statute allowing a police officer to choose the type of chemical test violated an impaired driving suspect’s constitutional right; noting that Neville and Schmerber “upheld as constitutional the use of compulsory blood tests to test blood alcohol content”)
  • State v. Drews, 2000 WL 1124237, 619 N.W.2d 307 (Wis. Ct. App. 2000) (unpublished) (opining that “when the passage from Schmerber is read with an understanding of Neville, the only possible conclusion is that ‘a reasonable request to undergo a different form of testing’ can only arise when law enforcement is on the verge of forcibly extracting a blood sample” and concluding that right did not apply to testing under implied consent laws).


The Texas Court of Appeals employed a slightly more nuanced approach in Pacheco v. State, 347 S.W.3d 849 (Tex. App. 2011).  The Pacheco court viewed Schmerber as establishing that for the general population a blood test is a reasonable means in which to analyze an individual’s blood alcohol level. Notwithstanding the general rule, a court may deem blood testing to be unreasonable when “‘the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.’” Id. at 854 (quoting Schmerber, 384 U.S. at 771). The Pacheco court explained that an impaired driving defendant bears the burden of establishing that the type of test employed was “not a reasonable means to obtain a blood alcohol level assessment as to him or her individually,” and the record must contain evidence showing that the police chose a test that was not reasonable due to a “verifiable medical condition.” Id. (internal quotations omitted). Otherwise, the court will presume that the choice to administer the selected test is reasonable.

There’s always an exception. The United States Court of Appeals for the Ninth Circuit in Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), a civil rights action filed by plaintiffs arrested for impaired driving, held that the city’s “insistence upon obtaining blood samples from [the DWI suspects] who requested or consented to undergo breath tests instead of blood tests was unreasonable if breath tests were actually available.” Id. at 1204. Significantly, the governing statute provided an arrested person with a choice about whether his breath, blood or urine would be tested. Careful readers will notice that Nelson directly conflicts with Ritschel.  The Ritschel court rejected the analysis in Nelson, finding it unpersuasive, not binding, and inconsistent with California law. Ritschel, 40 Cal. Rptr. 3d at 58.

North Carolina’s position. Our appellate courts have yet to address Schmerber’s unanswered question. If you know of a trial court that has, send in a comment and let us know what the court decided.

2 thoughts on “Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?”

  1. If an officer can remove the choice of breath vs. blood analysis then it’s only fair that the defendant not be assessed the $600 lab fee if the officer chooses the latter.

  2. From my experiences, generally a breath test is preferred because the results are instant, it’s less invasive, there’s no waiting at the hospital, and so forth, unless there is some sort of circumstance to prevent that, such as gross impairment where the arrestee is simply incapable of producing a suitable breath sample for the machine, is incapacitated, or there are no operators available for the machine and the only option is a blood test.


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