Drunk Driving, Texting, and the Fourth Amendment

No one has a right to drive. States have the ability to say who can and who can’t drive and to put restrictions on who is allowed to drive.

One restriction that many states put on drivers is that if you are pulled over and the cops think you might be drunk, you have impliedly consented — by virtue of having a driver’s license — to a Breathalyzer. Depending on state law and the circumstances, they can take away your driver’s license if you refuse.

Let’s think about that notion of consent. Outside of cities that have reliable public transportation (unlike Washington, D.C.), if you want to get to work, get your kids to school, or buy stuff from anyone other than Amazon you need to drive. The essence of consent is choice. It’s a little facetious to say that people who need to drive to live choose to drive; it’s like saying you choose to eat or breathe.

The law made sense back in the day, when you could simply take a horse and buggy instead of a car. But, now, it’s a cheap way to whittle away the Fourth Amendment. Yet the law is the law.

Implied consent is in the news in two interesting ways.

First, New York State is now considering passing a bill that gives the police permission to search your phone while driving. The contemplated device is called a “Textalyzer” and it is supposed to tell the cops whether your phone was active just before an accident. The legislature says that the search should make sure that it only checks whether the phone is active, not what the content of any activity is.

While I’m against distracted driving — or drunk driving — and both kinds of driving are unambiguously a massive public safety problem, this strikes me as problematic. Even assuming that the technology can tell if the phone is just active without looking at the content, won’t the content matter? If I’m using Google maps to navigate and give me audio instructions, it’s not clear to me that I’m distracted driving. Yet wouldn’t my phone be active?

In one way, the campaign against distracted driving strikes me as something of a relief. Obviously it’s good if fewer people die while driving. But, in addition, not looking at your phone for a while is nice. While I prefer to throw caution to the winds and ride the DC Metro despite the risk of death — so I rarely drive — I now kind of look forward to the time because I’m forced to step away from my phone. It’s like how flying was before airlines started having wifi. And that will be even better when the expectation is that people don’t respond to their phones while driving.

More substantively, next week, on April 20, there’s an argument in the Supreme Court on the limits of a state’s ability to compel you to submit to a Breathalyzer — Bernard v. Minnesota.

Minnesota, along with a number of other states, makes it a crime to refuse to submit to a Breathalyzer. Plenty of states say they’ll take away your driver’s license; after all, you don’t have a right to drive. But you do have a right to not be in prison (until you’re convicted of something that’s a crime) and you have a right not to be convicted of a crime for asserting your rights, like your right to be free of an illegal search.

So, the question is, does being compelled to submit to a Breathalyzer violate your Fourth Amendment rights?

The government already needs a warrant to do a blood test (absent consent). As someone who is deathly afraid of needles (I have been known to choose medical providers based on who I can talk out of ordering blood work), that seems like a really good idea.

So the question is this: is breath like blood?

Any smart high school student can see the issue here — a breath test is like a blood test in some ways but not others. In some ways, I lament the death of the comment section for spirited debate on this point. Or, rather, I would, if the comment section would contain more than a series of ad hominem attacks and penis jokes. Alas.

Personally, I agree with NACDL’s brief — it’s not that hard to get a warrant. I never understand why the government doesn’t get more warrants, especially since states have made telephone warrants pretty quick. I assume it’s either laziness or because there’s something corrupt going on. But I’m probably just being romantic.

Compelled exceptions to the Fourth Amendment should trouble us — they should be particularly offensive to these important constitutional rights. We’ll see how, post-Scalia, those rights fare.

---

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.