Lost in the Supreme Court shuffle yesterday was the Court’s drunk driving decision (Birchfield v. North Dakota) on breath and blood tests and the Fourth Amendment. The Court ruled that breath tests whether at the scene or at the station did not require a warrant. On the other hand, blood tests because of their more intrusive character were ruled to require a warrant.
The significance of this decision in drunk driving cases is small for two reasons. First, most jurisdictions rely on breath tests administered at the station (the breath test administered in the field, whatever its merits as a screening test is inadmissible). Presumably those jurisdictions using blood tests in drunk driving cases will begin to shift to in-station breath tests.
On the other hand, blood tests are the standard test employed to determine whether a motorist has been driving under the influence of drugs other than alcohol, and, in the absence of exigent circumstances, the Birchfield decision states that a warrant is required in those cases as well. Here again, the impact of the decision is limited because of an exception to the warrant requirement. The overwhelming majority of states including New York have passed implied consent laws. They provide that by securing a license to drive on the highways, a motorist has agreed to submit to a breath or blood test (at least when the test is preceded by a valid arrest), and refusals to submit to such tests at the station can be admitted in evidence against the motorist and will lead to a license suspension or revocation. (A refusal to take a breath test at the scene in New York is a simple infraction).
What distinguished Birchfield and the companion cases is that North Dakota’s implied consent law criminalized the refusal to submit to a breath or blood test. Eleven other states take the criminalization approach. The Court led by Justice Alito ruled that this went too far to support the conclusion that the motorists had “consented” to the tests.