PBTs and the Fourth Amendment

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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.

2 comments on “PBTs and the Fourth Amendment

  1. I see a huge conflict arising in North Carolina State’s Policies. Its legislatures seem to be creating two classes of ‘Citizens’ within a single class based on age. If the legislatures can arbitrarily enact discriminatory, bigoted, and prejudicial State Policies targeting an age group within the state body politic lawfully, and stripping this class of People of rights and remedies, what prevents them (legislatures) from enacting other State Polices targeting other age groups, and stripping them of ‘rights and remedies’, or crafting other discriminatory and prejudicial State Policies targeting other groups such an racial, religious, or sexual as examples?
    In 1870 the 15th Amendment (Amend) to the Constitution of the United States (US Const.) secured to a class of citizens the qualified privilege (“civil right”; A “civil right” is a right given and protected by law, and a person’s enjoyment thereof is regulated entirely by law that creates it. Nickell v Rosenfield (1927) 82 CA 369, 375, 255 P 760) of voting in elections.

    In 1920 the 19th Amend to the US Const. was enacted by the US Congress securing the “civil right” of qualified women to participate in elections.

    In 1971 the 23rd Amend to the US Const. was enacted by the US Congress securing the “civil right” of all ‘qualified persons’ of 18 years of age to participate in the elections process.

    It appears that some States drawing on the privileges (“civil rights”) secured to them by the 10th Amend to the US Const. to create and enforce the State’s election laws were enacting bigoted, prejudicial, and discriminatory State polices against these classes of Citizen’s and others. The Amends supra appear to be an attempt by the national government to create some form of uniformity into the elections laws by setting a national age for adulthood, and end the bigotry, prejudice, and discriminatory practices of some States.

    To avoid the argument of sovereignty let us look at the North Carolina State Constitution. Pursuant to NCSC at ARTICLE (Art.) 1 DECLARATION OF RIGHTS Section (Sec.) 1 Titled; ‘The equality and rights of persons’ it is held “to be self-evident that all persons are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits to their own labor, and the pursuit of happiness.

    I see a problem here with the wording and language. All People are ‘persons’ but not all persons are People. All People are born, they live, breath, eat, have blood, a heart, lungs, brain, ears, eyes ETC. They are a product of the activities of two People that come into existence as a result of intercourse engaged in between the two People. They are commonly referred to as ‘natural born People’. Their ‘natural rights’ ((“Civil rights”) People v. Washington (1869) 36 C 658, 6622.)) are those that grow out of the nature of man and depend on his personality and are distinguished from those which are created by positive laws enacted by duly constituted government to create an orderly civilized society ( In re Gogabashvele’s Estate, 195 Cal. App.2d 503, 16 Cal.Retr. 77, 91. (Ref. BLD. Pg. 1027, )

    On the other hand a State is NOT a product of nature. The only rights any State has are “civil rights”, which cannot rightfully be used to usurp, abridge, or deny any of the ‘natural rights’ that only People have which are secured by the laws of an ‘orderly civilized society’ (supposedly).

    As evidence of the sovereignty of the American Citizens over both the State, and National governments I offer the following; “Under our system (American Jurisprudence Added by author), the people who are ‘in England’ called subjects, are here the sovereign(s).” (U.S. v. Lee, 106 U.S. 196 at 208), and “The People of a State are entitled to all rights which formerly belonged to the King (of England Added by Author) by his prerogative.” (Lansing v. Smith, (1829) 4 Wend. 9.20).
    If in fact it is true that the American body politic is sovereign over their body corporate (Federal, State, County, City government[s]), and the laws define People of eighteen and over as competent, qualified, participating members of the American body politic, how can a State rightfully, lawfully, arbitrarily declare them a lesser class of persons, segregate them from within the group (body politic), strip them of rights, privileges, and immunities that all others have?
    This class of Citizens between the ages of 18 and 21 have the lawful right to contract, including marriage, have children, rear children, are expected to labor, work, hold a job, be employed, or be self-employed, pay taxes, travel around the entire globe, serve in the military, without any parental consent, and yet they cannot drink, and now I am hearing of some new ridicules State policy coming into effect that places curfews on them, and restrains their liberty to travel at night under the pretext of protecting the whole NC state body politic.
    These People are either children subject to parental control or they are not. I feel that NC State is and has far overstepped its lawful boundaries in many areas. As far as the State complying to the requirements of the US bill of rights, including the 4th, 5th, and 14th I feel it is falling far short of this obligation.

    • Jim, I could not have said it more eloquently that you did! I find your arguments articulate and correctly on point. I agree whole heartedly! I can remember back around 1970 when at least in the state of NJ, the legal drinking age was lowered to 18. The logic was that 18 year olds had to register with Selective Service requirements and be prepared to give 2 years of military service during a time of an unpopular war. This fact is also I believe what precipitated the constitutional amendment lowering the voting age to 18. The subsequent problems as a result of 18 year olds drinking alcoholic beverages, the increased awareness and the political push by large special interest groups, mainly MADD, to curb drunk driving is what caused many states if not all to raise the legal drinking age to 21 again. It also started the push to lower the BAC limits which at one time were .15, and then down to .10, and then to .08 where it is now. What I find troubling is that the DUI laws really in effect to little to nothing to stop drinking and driving. State laws as written clearly suggest that it is alright and legal to drive after one has consumed alcoholic beverages. By doing this they effectively entrap motorists whose only way of telling if they are okay to drive is essentially by how they feel. People react differently to alcohol and all other mood altering substances, and while one person may not feel okay to drive with a BAC of .08 many others would feel fine with a BAC of .10! Therefore, and at least in my view, the laws as written are clearly nothing more than a Ponzi scheme set up for the purposes of obtaining revenue. If the government was serious at all about stopping DUI they would legislate a 0 tolerance for all drivers regardless of age! Such legislation would send the message once and for all that no person should be behind the wheel of a motor vehicle after consuming any amount of alcohol! This I believe would effectively deter most people from doing so, perhaps all but the most chronic problem drinkers. All violations should carry a mandatory jail sentence and loss of driving privileges for at least one year as well as mandatory substance abuse counseling. I would also suggest that auto manufacturers should be compelled to install ignition interlocking devices in all new vehicles which would also go a long way in stopping people from driving after consuming alcoholic beverages. After all. Auto manufacturers have come a long way with installing all types of wonderful technologies in new line autos of late. Why not another safety feature such as ignition interlocking devices as they have already added front and side airbags, anti locking brakes, tire inflation monitors, etc…?

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