US Supreme Court permits DWI breath tests but rejects blood test
BIRCHFIELD v. NORTH DAKOTA SUPREME
COURT OF THE UNITED STATES CERTIORARI
TO THE SUPREME COURT OF NORTH DAKOTA
No. 14–1468. Argued April 20, 2016—Decided June 23,
2016*
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 deter- mined through a direct analysis of a blood sample or by
using a ma- chine 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 rejected 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 permit- ted 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.
Held:
1. The Fourth Amendment permits warrantless breath tests incident to
arrests for drunk driving but not warrantless blood tests.
(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. This exception applies categorically, rather than on a case-by-case
basis. Missouri v. McNeely, 569 U. S. ___, ___, n. 3.
(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 inc-
dent to arrest.
(c) The analysis begins by
considering the impact of breath and blood tests on individual privacy
interests.
(1) Breath tests do not “implicate]
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.
(3) Bernard argues that
warrantless BAC testing cannot be justified as a search incident to arrest
because that doctrine aims to prevent the arrestee from destroying evidence,
while the loss of blood alcohol evidence results from the body’s metabolism of
alcohol, a natural process not controlled by the arrestee. In both instances,
however, the State is justifiably concerned that evidence may be lost. The State’s
general interest in “evidence preservation” or avoiding “the loss of evidence,”
Riley, supra, at ___, readily encompasses the metabolization of
alcohol in the blood. Bernard’s view finds no support in Chimel v. California,
395 U. S. 752, 763, Schmerber, 384 U. S., at 769, or McNeely,
supra, at ___.
(e) 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 pre- vents 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. Pp. 33–35.
2. 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 penal- ties 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. Pp. 36–37.
3. These legal conclusions
resolve the three present cases. Birch- field 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. Be- cause 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.
No. 14–1468, 2015 ND 6, 858 N. W.
2d 302, reversed and remanded; No. 14–1470, 859 N. W. 2d 762, affirmed; No.
14–1507, 2015 ND 18, 859 N. W. 2d 403, vacated and remanded.
ALITO, J.,
delivered the opinion of the Court, in which ROBERTS, C. J, and KENNEDY,
BREYER, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in
part and dissenting in part, in which GINSBURG, J., joined. THOMAS, J., filed
an opinion concurring in the judgment in part and dissenting in part.
