At the start of the fall semester, the Daily Tar Heel reported that Chapel Hill and Carrboro police officers have combined forces with UNC campus police in an effort to ramp up enforcement of laws prohibiting underage drinking. The article states that undercover operations are among the tactics employed by the town’s Alcohol Law Enforcement Response Team to ferret out college-age miscreants.
G.S. 18B-302, the statute that makes it unlawful to for a person less than 21 years old to consume alcoholic beverages, places another enforcement tool at officers’ disposal. G.S. 18B-302(j) permits a law enforcement officer to “require any person the officer has probable cause to believe is under age 21 and has consumed alcohol to submit to an alcohol screening test using a device approved the Department of Health and Human Services.” Approved devices, listed here, include several versions of the ALCO-SENSOR brand of breath testing devices. Regulations further prescribe the manner in which screening tests may be administered on such devices. G.S. 18B-302(j) renders “admissible in any court or administrative proceeding” a person’s refusal to submit to testing on an approved alcohol screening test device.
Of course, such alcohol screening test devices, commonly referred to as portable breath tests or PBTs, also are approved for and commonly employed in the investigation of implied consent offenses. G.S. 20-16.3 permits a law enforcement officer to require the driver of a vehicle to submit to an alcohol screening test within a relevant time after the driving if the officer has (1) reasonable grounds to believe that the driver has consumed alcohol and has committed a moving traffic violation or been involved in an accident or collision; or (2) an articulable and reasonable suspicion that the driver has committed an implied-consent offense under G.S. 20-16.2, and the driver has been lawfully stopped or “lawfully encountered” by the officer in the course of the performance of the officer’s duties. Refusal by a driver who is under 21 to submit to an alcohol screening test may be considered by a court in determining whether alcohol was present in the driver’s body for purposes of a prosecution under G.S. 20-138.3.
A test of a person’s breath on an approved PBT is not a “chemical analysis” for which a driver’s consent is implied pursuant to G.S. 20-16.2. Yet the administration of such a breath test by a law enforcement officer is a Fourth Amendment search. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989) (holding that “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis” is a search governed by the Fourth Amendment); People v. Chowdhury, 775 N.W.2d 845, 854 (Mich. App. 2009) (rejecting argument that because PBT is less intrusive than a Breathalyzer test, it is not a search for purposes of the Fourth Amendment); cf. State v. Jones, 106 P.3d 1, 6 (Kan. 2005) (asserting that while “[i]t would be overbroad to declare that all PBT’s are searches . . . the particular PBT used on [the defendant] tested his deep lung breath for chemical analysis and, under Skinner, was a search subject to the strictures of the Fourth Amendment”). For such a search to satisfy the reasonableness requirement of the Fourth Amendment, it must–absent the person’s consent to the search, exigent circumstances, or a special needs exception to the warrant requirement–be carried out pursuant to a judicial warrant issued upon probable cause.
Courts have long recognized that exigent circumstances may justify the warrantless search of a defendant’s blood when there is probable cause to believe the defendant was driving while impaired and that the delay necessary to obtain a warrant threatens the destruction of evidence. See Schmerber v. California, 384 U.S. 757, 770–71 (1966) (explaining that “’where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant”); State v. Fletcher, 202 N.C. App. 107, 110-13 (2010) (upholding finding that officer investigating impaired driving offense reasonably believed that the two or three hour delay associated with obtaining a warrant would result in the dissipation of the alcohol in defendant’s blood and that exigent circumstances allowed a warrantless blood draw).
Perhaps the exigencies identified in Schmerber, combined with the minimally intrusive nature of a PBT when weighed against the danger to the public posed by impaired driving, render constitutional the routine warrantless administration of alcohol screening tests to drivers suspected of committing an implied consent offense. Courts in other states have concluded that such searches are reasonable under the Fourth Amendment. See State v. Prescott, 784 N.W.2d 873, 885-86 (Neb. 2010) (holding that “[b]ecause a PBT is quick and minimally intrusive, and because the State has a compelling interest in removing drunk drivers from its highways . . . an officer is reasonable in administering a PBT if he can point to specific, articulable facts indicating that an individual has been driving under the influence of alcohol); State v. McGuigan, 965 A.2d 511, 517 (Vt. 2008) (finding “[t]he relatively limited intrusion into a suspect’s privacy” of a PBT “outweighed by the important public-safety need to identify and remove drunk drivers from the roads” and thus finding it reasonable under the Fourth Amendment for an officer to administer a PBT to a suspect if she can point to specific, articulable facts indicating that an individual has been driving under the influence of alcohol.)
I wonder, though, whether the degree of urgency in Schmerber or the state’s interests in Prescott and McGuigan apply to the need to obtain breath samples from underage persons suspected of consuming alcohol. Given that the gravity of the underlying offense is among the factors to be considered in determining whether an exigency exists so as to justify a warrantless search, see Welsh v. Wisconsin, 466 U.S. 740 (1984) (determining that “a warrantless arrest of defendant in his home cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant” when offense for which defendant was arrested was a noncriminal traffic offense); McCarn v. Beach, 91 F.3d 131 (4th Cir. 1996) (listing the gravity of the offense as among the factors relevant to the issue of exigency), is consumption of alcohol by a 19- or 20-year old (a Class 3 misdemeanor, see G.S. 18B-302(i)) or a person under 19 (a Class 1 misdemeanor, see G.S. 18B-102(b)) sufficiently serious to justify a warrantless search based on exigent circumstances?
The United States District Court for the Eastern District of Michigan has struck down as unconstitutional a city ordinance and state law that allowed an officer with reasonable cause to believe a minor had consumed alcohol to demand that the minor submit to a warrantless breath test. See Platte v. Thomas Township, 504 F. Supp.2d 227 (E.D. Mich 2007); Spencer v. City of Bay City, 292 F. Supp.2d 932 (E.D. Mich. 2003). Neither law imposed jail time as a sanction, instead providing for punishment by a fine and imposing a civil fine for refusal to submit to testing. Platte and Spencer concluded that the laws’ blanket authorization of warrantless searches was repugnant to the Fourth Amendment, rejecting the argument that exigent circumstances always exist whenever breath samples are sought and that the legislature can determine and automatically apply this exception to the warrant requirement. Platte , 504 F. Supp.2d at 241-42; Spencer, 292 F. Supp.2d at 943-44. Spencer also rejected the city’s argument that the special needs exception to the warrant requirement applied, stating “ [t]here is nothing ‘special’ in the need of law enforcement to detect evidence of ordinary criminal wrongdoing; even where crime is on the rise and the disorder and insecurity caused by criminal behavior in a community is grave, the Supreme Court has consistently held that ‘the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.’” 292 F. Supp. 2d at 941 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 42, (2000). The Michigan Court of Appeals in People v. Chowdhury, 775 N.W.2d 845 (Mich. App. 2009), followed suit, finding Platte and Spencer persuasive and ruling unconstitutional a substantially similar city ordinance. In addition, the Chowdhury court rejected the city’s argument that the defendant’s consent to the PBT in that case dispensed with the need for a warrant. Noting that “[t]o validate an otherwise unreasonable search or seizure, consent must be unequivocal, specific, and freely and intelligently given,” the court concluded that the defendant’s acquiescence to the orders of a law enforcement officer who did not ask for his consent did not amount to consent freely and voluntarily given. Id. at 855-86.
North Carolina’s laws prohibiting consumption of alcohol by underage persons differ from the laws ruled unconstitutional in Platte, Spencer and Chowdhury in that there is no civil penalty for refusing a portable breath test and certain defendants with prior convictions may serve jail time for underage consumption. Nevertheless, the analysis in Platte, Spencer and Chowdhury still strikes me as relevant. The statutes considered in those case criminalized the same conduct prohibited by G.S. 18B-302(b)(3), and despite the potential for jail time, violations of G.S. 18B-302(b)(3) (particularly when committed by a 19- or 20-year-old) are relatively minor offenses.
Readers, if you have thoughts about or have litigated the constitutionality of compelled PBTs in underage drinking prosecutions or implied consent cases, please share them.