Does a State violate the Fourth Amendment by criminalizing a driver's refusal to take a chemical test to detect blood-alcohol levels without a warrant?
The Fourth Amendment of the U.S. Constitution prohibits the government, or state governments, from carrying out “unreasonable searches and seizures” without a warrant. The Supreme Court has previously held that a chemical test for blood-alcohol content is a search. Several states have statutes that require drivers to consent to chemical tests as a condition of holding a drivers license, or impose criminal and civil penalties—including revoking drivers’ licenses—if drivers refuse chemical tests during traffic stops. Petitioners Danny Birchfield, William Robert Bernard, Jr., and Steve Michael Beylund argue that these statutes violate the Fourth Amendment's protection against warrantless searches and that no exception to this constitutional protection applies. Respondents North Dakota and Minnesota contend that, by driving on state roads, drivers provide implied consent to chemical tests where police suspect that a driver is intoxicated, and that the governmental interest in preventing drunk driving outweighs any Fourth Amendment concerns. This case could shape how the courts consider the role of driving in Fourth Amendment jurisprudence and could either narrow or expand states' police powers in cases of suspected drunk driving.
Questions as Framed for the Court by the Parties
In the absence of a warrant, may a State make it a crime for a driver to refuse to take a chemical test to detect the presence of alcohol in the driver’s blood?
On July 6 and July 7, 2012, drivers driving under the influence of alcohol in North Dakota lost control of their vehicles and caused several tragic deaths. In response, North Dakota passed Brielle’s Law, named after one of the victims. Brielle’s Law criminalizes a driver’s refusal to take a chemical test to determine blood-alcohol levels. Police officers cannot, however, require drivers to take chemical tests unless officers first place “the individual under arrest[,] inform him that he is being or will be charged with driving under the influence,” and explain that North Dakota law considers refusal to participate in the test “a crime punishable in the same manner as driving under the influence.”
On October 10, 2013, Danny Ray Birchfield drove off a highway and into a ditch in North Dakota. State Trooper Tarek Chase arrived in time to observe Birchfield attempting to drive out of the ditch. Chase suspected that Birchfield was under the influence of alcohol; Birchfield agreed to submit to four field sobriety tests but failed or performed poorly on all four, showing “indicia of impairment.” Chase read the implied consent advisory to Birchfield, as required by State law, and Birchfield consented to an onsite breath test of his blood-alcohol content, which he failed. Chase arrested Birchfield, read him his Miranda rights and again read him the implied consent advisory, and asked Birchfield to take a chemical test of his blood. The consent advisory warned Birchfield that North Dakota law requires him to take a chemical test to determine whether he is under the influence and that Birchfield's refusal to do so would result in the same punishment as driving under the influence, but Birchfield refused to take the test. As a result, the State charged Birchfield “with driving under the influence of alcohol or drugs and/or refusing to submit to a chemical test after request by a law enforcement officer.”
Birchfield moved to dismiss this charge, stating that the charge violated his Fourth Amendment right against unreasonable search and seizure. The trial court denied Birchfield’s motion and found that there had not actually been a search because Birchfield had refused to allow the chemical test.
The Supreme Court of North Dakota agreed with the lower court, stating that “driving is a privilege, not a constitutional right and is subject to reasonable control by the State under its police power.” The Court held that Brielle’s Law was reasonable and adhered to the State’s strong interest in maintaining safe roads free from drunk drivers. The Court found that Birchfield had impliedly consented to such warrantless searches because Birchfield had elected to use North Dakota’s highways.
In Beylund v. North Dakota, Beylund’s license was suspended after Beylund submitted to a warrantless chemical blood test of his blood alcohol content after a police officer told him that his refusal to submit would result in his receiving criminal penalties.” Beylund appealed the suspension, but the North Dakota district court found that the officer had not coerced Beylund into consenting to the test.
The North Dakota Supreme Court agreed and affirmed Beylund's license suspension. The Court held that consent to a blood test is an exception to the Fourth Amendment's warrant requirement for searches and that even if Beylund did have a constitutional right to refuse the test, North Dakota’s interest in maintaining safe highways made imputing implied consent reasonable.
In Bernard v. Minnesota, police officers received a report that three intoxicated men were trying to extract “a boat out of the water with a truck.” Witnesses identified the truck driver as the petitioner, William Robert Bernard, Jr., and the police noticed that all the men seemed intoxicated. Bernard denied that he had driven the truck but admitted to drinking. The officers arrested Bernard after he refused to take field sobriety tests. The officers read Bernard the Minnesota Implied Consent Advisory, but he refused to take a breath test. Bernard was charged with two counts of “First Degree Driving While Impaired–Test Refusal.”
Bernard moved to dismiss the charges, claiming that “the State’s imposition of criminal penalties for refusing to submit to a warrantless breath test violate[d] the Fourth Amendment.” The state trial court held for Bernard, stating that “a warrantless search is per se unreasonable” subject to narrow exceptions that did not apply here. The Minnesota Court of Appeals reversed the trial court’s holding, finding there had been probable cause to search so that the officers “could have secured a warrant.” The Minnesota Supreme Court reached a similar holding but repudiated the Appellate Court’s reasoning. Instead, the Minnesota Supreme Court reasoned that the warrantless breath test fell under the Fourth Amendment’s search-incident-to-arrest exception.
These cases were consolidated for the convenience of the court, and as a result the parties avoided making duplicitous arguments.
THE FOURTH AMENDMENT AND WARRANTLESS SEARCHES
Birchfield argues that, as a starting point, a state cannot administer a search absent a warrant or consent. . Birchfield contends that, because of this restriction, a person cannot face criminal penalties for refusing to submit to a search not authorized by warrant or permissible under an exception to the warrant requirement. In Missouri v. McNeely, the Supreme Court held that blood tests for drunk driving constitute a search under the Fourth Amendment and that there was no “per se” or automatic exception that applied in those circumstances. In light of this holding, Birchfield argues that the State needs a warrant in order to perform a blood or breath test absent consent.
Furthermore, Birchfield contends that no exception applies to this case. Specifically, Birchfield and Bernard claim that the search incident to arrest is inapplicable because that exception is designed to ensure officer safety, which is not at issue during a sobriety stop. Birchfield also claims that, because of the Court’s holding in McNeely, there are no exigent circumstances in this case, that the special needs exception only applies when the justification for the search is unrelated to the state’s general interest in law enforcement, and that because sobriety stops are part of the State’s general interest in law enforcement, this exception is inapplicable in this case.
North Dakota claims that no warrant is required here because this should be governed under the general standard of reasonableness and that these chemical tests are reasonable in light of the circumstances. Minnesota further argues that, even if no warrant is required, breath tests would be justified under the “search incident to arrest” exception, which allows officers to search suspects while making a lawful arrest.
MAY STATES OBTAIN CONSENT IMPLICITLY?
Birchfield contends that there was no consent in this case and that the lower court was wrong to believe that there was. Specifically, Birchfield contends that consent is only present when it is the product of free and unconstrained choice rather than duress and coercion. Here, Birchfield claims that there was no free or unconstrained choice because petitioners were faced with the option of either consenting to a chemical test or facing criminal misdemeanor penalties. . Additionally, Birchfield claims that the actions of merely obtaining a license and using public roads do not produce implied consent to a chemical test because driving is a necessity to carry out basic functions.
Respondents counter that consent under this statutory scheme is voluntary because arrestees can revoke an implied consent and could therefore avoid a non-consensual warrantless search. Respondents further claim that implied consent statutes are constitutional under both the Fifth and Fourth Amendments. Respondent’s claim that, under McNeely, it is constitutional to punish revocation of consent by suspending the drivers license or using the fact of refusing a chemical test as evidence against a defendant in a criminal proceeding.
CAN STATES CONDITION DRIVING LICENSURE ON WAIVING CONSENT TO A WARRENTLESS CHEMICAL TEST?
Birchfield asserts that, because the North Dakota law compels consent to a chemical search as a requirement for driving within the state, the law violates the unconstitutional conditions doctrine. . The doctrine of unconstitutional conditions prevents states or the federal government from selectively granting a benefit on the condition that the person receiving that benefit surrender a constitutional right. . Here, Birchfield asserts that, because North Dakota has conditioned drivers’ privilege to retain their licenses on their submitting to a chemical test upon request by the police, North Dakota is granting a benefit on the condition that drivers give up their Fourth Amendment rights.
North Dakota, on the other hand, claims that, because the penalty here—which is a misdemeanor crime—does not exceed a certain threshold, the Court should weigh the importance of the state interest at issue against the rights of the individual and the nature of the condition. Here, North Dakota claims that the importance of keeping intoxicated drivers off the road weighs heavier than the minor infringement of a chemical test in upholding the condition at issue. . North Dakota also counsels that the Court should uphold these states' laws for the practical purpose of preventing drunk driving.
The Supreme Court will determine whether states’ laws criminalizing drivers’ refusal to take chemical tests to measure blood alcohol level violate drivers’ Fourth Amendment rights. The Court’s decision may adjust state governments’ police powers, consider the impact of technology on legal procedures, and re-define the legal understanding of driving.
IMPORTANCE OF DRIVING AND IMPLYING CONSENT
On behalf of Birchfield, Downsize DC Foundation, et al. contend that “the modern notion that driving is a ‘privilege’ and not a ‘right’ is a legal fiction” because “driving is not a voluntary commercial enterprise but a necessary aspect of daily living . . . especially in heavily rural States like North Dakota.” DC Foundation further argues that the Fourth Amendment does not only protect privacy interests but also property interests. Because driving “maximize[s] the economic productivity of one’s person” and has become so prevalent, drivers “should be understood to have an enhanced property interest” as far as their cars are involved. DC Foundation argues that asking drivers to choose either to accept warrantless searches via their “implied consent” or to regrain from driving does not provide two meaningful alternatives. Under this illusion of choice, drivers are unconstitutionally coerced into choosing “implied consent.” ; .
The California District Attorneys Association, on behalf of North Dakota, counters that, “[i]n California (as in all the other states) driving is not a fundamental right.” Similarly, the Council of State Governments et al., on behalf of North Dakota, note that driving, although important, is not absolutely necessary: “no one is required to drive” and millions of Americans affirmatively choose not to drive. The Council of State Governments notes the improvement of public transportation nationwide and the existence of other alternatives, such as e-hailing services like Uber, concluding that “recent studies indicate that driver’s licenses are on the decline across the country among nearly all age groups.” The United States further notes that the Court “long ago foreclosed the [“driving is necessary”] approach” in Hess v. Pawloski, 274 U.S. 352, 356 (1927) and South Dakota v. Opperman, 428 U.S. 364, 367–68 (1976), which acknowledged that cars’ dangerousness subject them to “continuing governmental regulation and control.” Because not driving is a viable alternative, drivers are not coerced into accepting implied consent laws, which renders these laws permissible.
REGULATORY PENALTIES VERSUS CRIMINALIZATION
On behalf of Birchfield, the ACLU notes a difference between regulatory penalties, such as suspending a driver’s license, and criminal penalties; it contends that regulatory penalties are very different from “criminalizing the assertion of one’s Fourth Amendment right—with all of its attendant punitive and collateral consequences.” The ACLU argues that the state's possibility of asserting regulatory penalties, rather than criminal penalties, for failure to submit to a chemical test renders “criminal penalties to enforce a system of all-purpose ‘implied’ consent” unconstitutional.
The Council of State Governments seeks to rebut that argument, asserting that drawing a line between “administrative and civil punishments” and criminalization is unpersuasive. Moreover, the criminal penalties enforce state laws whereas administrative and civil punishments would merely place drivers “in the same position they would have been in had they been forthcoming about their unwillingness to accept the condition in the first place.”
THE PRACTICALITY OF A REQUIRED WARRANT SYSTEM
Amici for Birchfield contend that requiring a warrant before a chemical test is no longer impractical because of technological advances. The National College for DUI Defense provides examples of the use of modern technology with warrants, including telephonic warrants, “Electronic On-Call Warrants” and “widespread electronic communication technology” using smart phones, iPads, email, and text messages.”
The United States notes, however, that requiring a warrant system does not address the underlying problem of enforcement. The United States asserts that “breath tests cannot be performed on non-consenting persons even if a warrant is obtained.” According to the United States, a required warrant system may cause delay and additional work for judges but not provide any additional evidence or benefit.
THE DISCRETION OF THE POLICE
The DUI Defense Lawyers Association argues that permitting warrantless searches to measure a driver's blood alcohol level would negatively impact the criminal justice system; police officers would be given great discretion when determining whether a driver might be impaired by alcohol. According to amici in support of Birchfield, because of the nature of their jobs, “officers are less likely to possess the detachment and neutrality with which the constitutional rights of the suspect must be viewed” and without an impartial magistrate issuing a warrant, suspects’ rights may not be protected.
The United States counters, maintaining that police officers are constrained by “probable cause.” Moreover, the United States suggests that the amici for Birchfield needlessly narrow the “probable cause” discussion. The United States examines “probable cause” not only in light of warrantless chemical tests but also in light of arrests: “the interest in swiftly obtaining this evidence is particularly great because probable cause of intoxication also justifies officers in making the far greater warrantless intrusion of an arrest.”
In this case, the Supreme Court will determine whether or not laws that either infer consent from possessing a drivers license or condition driving upon consenting to a chemical blood-alcohol content test violate the Fourth Amendment to the United States Constitution. Petitioners, three drivers pulled over for drunk driving, maintain that these state laws violate the Fourth Amendment's prohibition against warrantless searches. Respondents, North Dakota and Minnesota, argue that their compulsion of drivers to submit to chemical tests is justified and reasonable and that it does not violate the Fourth Amendment because drivers impliedly consent to the tests by driving on the states' roads. The Court’s ruling will affect countless drivers stopped by police and the safety regimes with respect to preventing drunk driving in all 50 states.
- Lyle Denniston, Court to Rule on Drunk-Driving Tests, scotusblog.com (Dec. 11, 2015).