3 Arguments In Favor Of Warrantless Breathalyzer Tests — And Why They’re Wrong

For civil libertarians, some states’ drunk driving laws really blow. And, unless drivers in some of those states want to face criminal penalties for refusing to submit to a warrantless Breathalyzer test, those drivers had better blow too.

Currently, 12 states, as well as the National Parks, make it a crime for a driver to refuse to comply with breath or blood sobriety tests when a police officer suspects that the driver is intoxicated. A person can be guilty of the offense even when officers have not obtained a warrant first.

That may change, however.

Recently, the United States Supreme Court heard oral arguments in Birchfield v. North Dakota. The case asks the Court to decide whether a state can make it a crime for a person suspected of drunk driving to refuse a warrantless breath or blood test to determine his blood-alcohol level. The Justices will consider whether either type of chemical sobriety test falls within any of the exceptions to the Fourth Amendment’s general rule prohibiting warrantless searches.

Here are three reasons why the government thinks it doesn’t need to get a warrant before making you blow or bleed . . . and why they’re wrong.

States’ Reason #1: Blowing Is No Big Deal.

There is, of course, a threshold question: whether a particular sobriety test counts under the Fourth Amendment as a search in the first place.

In 2013, in Missouri v. McNeely, the Court held that blood tests to check for sobriety, which involve a compelled physical intrusion beneath a person’s skin for the purpose of collecting evidence for a criminal investigation, fall within the Fourth Amendment’s general warrant requirement.

Breath tests may be a different matter, however.

While the Court might deem a blood test invasive enough to require law enforcement to get a warrant before tapping into an arrestee’s vein, the Court could view blowing into a Breathalyzer as so minimally invasive that the warrant requirement does not apply.

The Court consolidated Birchfield with related cases from North Dakota and Minnesota — Bernard v. Minnesota and Beylund v. Levi. In one case, the defendant petitioning the Court declined a blood test, while another challenger declined a breath test. In the third case, the defendant refused field sobriety tests, but was then taken to a hospital against his will for a blood test, and was ultimately convicted of a drunk driving offense. In consolidating the three cases, the justices gave themselves several factual variations to tease out the issues.

But why ask citizens to endure even a minimally invasive search without a warrant? Current technology allows most police officers to obtain warrants quickly and easily — often within minutes, from the roadside. Preserving a fundamental Fourth Amendment right is worth a small inconvenience for law enforcement officers.

States’ Reason #2: Cops Need To Preserve Your Blood Before The Booze Dries Up.

According to another argument by the states, warrantless chemical sobriety tests are constitutionally permissible because they count as searches incident to arrest.

Under the search incident to arrest exception to the warrant requirement, officers may conduct a warrantless search of an arrestee and his immediate surroundings in order to prevent the person from obtaining a weapon or destroying or hiding evidence.

Chemical sobriety tests don’t seem to protect officer safety. The chance that an arrestee could use what’s in his lungs or bloodstream to attack police seems pretty damned unlikely, no matter how much he’s been drinking.

What about preventing the destruction of evidence?

Unfortunately for the states, this rationale does not seem to square with the plurality opinion in the above mentioned Missouri v. McNeeley. Missouri had argued that law enforcement officers couldn’t wait around for a warrant if they suspected that a person was intoxicated beyond the legal limit at the time she was pulled over, because a person’s blood-alcohol level drops as a drunken person sobers up. However, Justice Sotomayor wrote for the plurality that the natural dissipation of alcohol from the bloodstream does not in itself count as an exigent circumstance.

If losing evidence of a suspect’s allegedly boozy blood does not create an exigent circumstance, then losing that evidence should not be a basis for claiming that a sobriety test is justified by the destruction-of-evidence prong of the search incident to arrest exception.

Shoehorning chemical sobriety tests into the search incident to arrest doctrine would either stretch the doctrine beyond its original reasons for existing or require some delicate footwork to dance around the Court’s recent related precedents.

States’ Reason #3: If You’re Driving, You’re Asking For It.

The most dangerous argument for why states don’t need warrants to conduct chemical sobriety tests is implied consent.

States like North Dakota and Minnesota claim that a driver consents to be searched without a warrant whenever he or she gets behind the wheel. Here’s a relevant provision of North Dakota’s law:

“Any individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, or urine for the purpose of determining the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine.”

Under the implied consent rationale, the criminal penalties the state slaps on those who refuse to comply with what would otherwise be an illegal search are fine, since all drivers automatically waive their Fourth Amendment rights in this area, whether they know it or not.

This thinking should make civil libertarians, even teetotaling ones, squirm. How many Constitutional rights can a state insist that people within its borders impliedly waive away?

Consider the following scenario: Minnesota adds a provision to its penal code that makes it a crime for a person to withhold permission for a police officer to enter and search her home without a search warrant.

Ordinarily, the Fourth Amendment would protect her refusal. The police officer can’t enter, and the state can’t prosecute the resident for not giving up her Constitutional right to oppose a warrantless search of her home.

But what if Minnesota claims that by owning or occupying a home within the state, residents imply their consent to any and all future warrantless home searches? Would the Court buy this justification?

Implied consent is a fundamental concept in law and government, of course. It’s sometimes pragmatically necessary, even if it’s philosophically dubious. There are, however, limits to how much consent citizens can be reasonably said to imply simply by participating in mundane activities within a state.

Nobody endorses drunk driving, of course. As with many Fourth Amendment issues, however, the underlying constitutional principles matter, even for those of us who may never run afoul of the law.

The state laws at issue in Birchfield have made it a crime for people to say “no” to presumptively illegal searches by law enforcement officers. Police officers are not fond of hearing “no,” even when their requests don’t have any formal legal basis and don’t carry any criminal penalties for refusal. In states like North Dakota and Minnesota, the added criminal penalty turns pressure into outright state coercion.

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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her on Twitter at @tamaratabo or via email at [email protected].