US Supreme Court: Warrantless Breath Tests are Permissible

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On June 20, 2016, the United States Supreme Court decided Birchfield v. North Dakota. This case dealt with the refusal offense and if states are allowed to criminally punish defendants for refusing to take a blood alcohol test pursuant to a DWI/DUI arrest.

The Supreme Court heard from three petitioners in this case: Danny Birchfield and Steve Michael Beylund from North Dakota and William Robert Bernard, Jr. from Minnesota. In both North Dakota and Minnesota, it is a criminal offense (with the possibility of jail) to refuse to give a BAC test. The petitioners argued that they cannot be threatened with criminal sanctions in order to give a BAC test.

The Supreme Court held that under the search incident to arrest doctrine, warrant breath tests are permissible. This doctrine allows police to search a suspect’s person after a lawful arrest. In other words, when police have conducted a lawful drunk driving arrest, they are allowed to take breath samples from the suspect.

However, the Court held that the search incident to arrest doctrine does not extend to blood tests. The Court previously ruled in Missouri v. McNeeley, 569 U.S. ___ (2013), that the natural dissipation of alcohol in the blood does not negate the need for police to obtain a warrant for a blood test in most DWI/DUI cases.

In addition, the Court was of the opinion that a breath test was less intrusive than a blood test, since the latter requires blood to be extracted from a suspect’s body with a needle.

In sum, the Court upheld the warrantless taking of breath samples of drunk driving suspects but the Court did not overrule its prior decision in Missouri v. McNeeley.

While the Supreme Court did not invalidate warrantless breath tests, DWI/DUI and refusal cases are complex and the outcome can depend on the particular facts and circumstances of each case. If you have been charged with a DWI, DUI, and/or refusal violation, it is important to speak with an attorney to discuss the particular set of facts and circumstances in your case.