US Supreme Court Ruling Clarifies Breath and Blood Testing in DUI Cases
To fight the serious harms inflicted by drunk drivers, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) exceeding a specified level. BAC is typically determined through a direct analysis of a blood sample or by using a machine to measure the amount of alcohol in a person’s breath.
FACTS AND PROCEDURAL HISTORY:
To fight the serious harms inflicted by drunk drivers, all States have laws that prohibit motorists
from driving with a blood alcohol concentration (BAC) exceeding a specified level. BAC is
typically determined through a direct analysis of a blood sample or by using a machine to
measure the amount of alcohol in a person’s breath. To help secure drivers’ cooperation with
such testing, the States have also enacted “implied consent” laws that require drivers to submit to
BAC tests. Originally, the penalty for refusing a test was suspension of the motorist’s license.
Over time, however, States have toughened their drunk-driving laws, imposing harsher penalties
on recidivists and drivers with particularly high BAC levels. Because motorists who fear these
increased punishments have strong incentives to reject testing, some States, including North
Dakota and Minnesota, now make it a crime to refuse to undergo testing. In these cases, all three
petitioners were arrested on drunk-driving charges. The state trooper who arrested petitioner
Danny Birchfield advised him of his obligation under North Dakota law to undergo BAC testing
and told him, as state law requires, that refusing to submit to a blood test could lead to criminal
punishment. Birchfield refused to let his blood be drawn and was charged with a misdemeanor
violation of the refusal statute. He entered a conditional guilty plea but argued that the Fourth
Amendment prohibited criminalizing his refusal to submit to the test. The State District Court re-
jected his argument, and the State Supreme Court affirmed. After arresting petitioner William
Robert Bernard, Jr., Minnesota police transported him to the station. There, officers read him
Minnesota’s implied consent advisory, which like North Dakota’s informs motorists that it is a
crime to refuse to submit to a BAC test. Bernard refused to take a breath test and was charged
with test refusal in the first degree. The Minnesota District Court dismissed the charges,
concluding that the warrantless breath test was not permitted under the Fourth Amendment. The
State Court of Appeals reversed, and the State Supreme Court affirmed. The officer who arrested
petitioner Steve Michael Beylund took him to a nearby hospital. The officer read him North
Dakota’s implied consent advisory, informing him that test refusal in these circumstances is itself
a crime. Beylund agreed to have his blood drawn. The test revealed a BAC level more than three
times the legal limit. Beylund’s license was suspended for two years after an administrative
hearing, and on appeal, the State District Court rejected his argument that his consent to the
blood test was coerced by the officer’s warning. The State Supreme Court affirmed.
1. Does the 4th Amendment allow for warrantless breath testing incident to arrests for drunk
2. Does the 4th Amendment permit warrantless blood tests incident to arrest for drunk
3. Can motorists be criminally punished for refusing to consensually provide a blood sample
after having been arrested for drunk driving/DUI?
1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk
driving but not warrantless blood tests. Pp. 13–36. (a) Taking a blood sample or
administering a breath test is a search governed by the Fourth Amendment. See Skinner
v. Railway Labor Executives’ Assn., 489 U. S. 602, 616–617; Schmerber v. California,
384 U. S. 757, 767–768. These searches may nevertheless be exempt from the warrant
requirement if they fall within, as relevant here, the exception for searches conducted
incident to a lawful arrest. (b) The search-incident-to-arrest doctrine has an ancient
pedigree that predates the Nation’s founding, and no historical evidence suggests that the
Fourth Amendment altered the permissible bounds of arrestee searches. The mere “fact of
the lawful arrest” justifies “a full search of the person.” United States v. Robinson, 414
U. S. 218, 235. The doctrine may also apply in situations that could not have been
envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S.
___, the Court considered how to apply the doctrine to searches of an arrestee’s cell
phone. Because founding era guidance was lacking, the Court determined “whether to
exempt [the] search from the warrant requirement ‘by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests.’ ” Id., at ___.
The same mode of analysis is proper here because the founding era provides no definitive
guidance on whether blood and breath tests should be allowed incident to arrest. (c) The
analysis begins by considering the impact of breath and blood tests on individual privacy
interests. (1) Breath tests do not “implicat[e] significant privacy concerns.” Skinner, 489
U. S., at 626. The physical intrusion is almost negligible. The tests “do not require
piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. Requiring an
arrestee to insert the machine’s mouthpiece into his or her mouth and to exhale “deep
lung” air is no more intrusive than collecting a DNA sample by rubbing a swab on the
inside of a person’s cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath
a suspect’s fingernails, Cupp v. Murphy, 412 U. S. 291. Breath tests, unlike DNA
samples, also yield only a BAC reading and leave no biological sample in the
government’s possession. Finally, participation in a breath test is not likely to enhance
the embarrassment inherent in any arrest.
2. The same cannot be said about blood tests. They “require piercing the skin” and extract a
part of the subject’s body, Skinner, supra, at 625, and thus are significantly more
intrusive than blowing into a tube. A blood test also gives law enforcement a sample that
can be preserved and from which it is possible to extract information beyond a simple
BAC reading. That prospect could cause anxiety for the person tested. (d) The analysis
next turns to the States’ asserted need to obtain BAC readings. (1) The States and the
Federal Government have a “paramount interest . . . in preserving [public highway]
safety,” Mackey v. Montrym, 443 U. S. 1, 17; and States have a compelling interest in
creating “deterrent[s] to drunken driving,” a leading cause of traffic fatalities and injuries,
id., at 18. Sanctions for refusing to take a BAC test were increased because consequences
like license suspension were no longer adequate to persuade the most dangerous
offenders to agree to a test that could lead to severe criminal sanctions. By making it a
crime to refuse to submit to a BAC test, the laws at issue provide an incentive to
cooperate and thus serve a very important function. (2) As for other ways to combat
drunk driving, this Court’s decisions establish that an arresting officer is not obligated to
obtain a warrant before conducting a search incident to arrest simply because there might
be adequate time in the particular circumstances to obtain a warrant. The legality of a
search incident to arrest must be judged on the basis of categorical rules. See e.g.,
Robinson, supra, at 235. McNeely, supra, at ___, distinguished. Imposition of a warrant
requirement for every BAC test would likely swamp courts, given the enormous number
of drunk-driving arrests, with little corresponding benefit. And other alternatives—e.g.,
sobriety checkpoints and ignition interlock systems—are poor substitutes. Because the
impact of breath tests on privacy is slight, and the need for BAC testing is great, the
Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.
Blood tests, however, are significantly more intrusive, and their reasonableness must be
judged in light of the availability of the less invasive alternative of a breath test.
Respondents have offered no satisfactory justification for demanding the more intrusive
alternative without a warrant. In instances where blood tests might be preferable—e.g.,
where substances other than alcohol impair the driver’s ability to operate a car safely, or
where the subject is unconscious—nothing prevents the police from seeking a warrant or
from relying on the exigent circumstances exception if it applies. Because breath tests are
significantly less intrusive than blood tests and in most cases amply serve law
enforcement interests, a breath test, but not a blood test, may be administered as a search
incident to a lawful arrest for drunk driving. No warrant is needed in this situation.
3. Motorists may not be criminally punished for refusing to submit to a blood test based on
legally implied consent to submit to them. It is one thing to approve implied-consent laws
that impose civil penalties and evidentiary consequences on motorists who refuse to
comply, but quite another for a State to insist upon an intrusive blood test and then to
impose criminal penalties on refusal to submit. There must be a limit to the consequences
to which motorists may be deemed to have consented by virtue of a decision to drive on
public roads. These legal conclusions resolve the three present cases. Birchfield was
criminally prosecuted for refusing a warrantless blood draw, and therefore the search that
he refused cannot be justified as a search incident to his arrest or on the basis of implied
consent. Because there appears to be no other basis for a warrantless test of Birchfield’s
blood, he was threatened with an unlawful search and unlawfully convicted for refusing
that search. Bernard was criminally prosecuted for refusing a warrantless breath test.
Because that test was a permissible search incident to his arrest for drunk driving, the
Fourth Amendment did not require officers to obtain a warrant prior to demanding the
test, and Bernard had no right to refuse it. Beylund submitted to a blood test after police
told him that the law required his submission. The North Dakota Supreme Court, which
based its conclusion that Beylund’s consent was voluntary on the erroneous assumption
that the State could compel blood tests, should reevaluate Beylund’s consent in light of
the partial inaccuracy of the officer’s advisory.
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