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Supreme Court Says Warrant-less Breathalyzers Ok, But Not Implied Consent Blood Tests

In a surprisingly one-sided decision, the U.S. Supreme Court ruled 7-1 on June 23 that vehicle operators may be subjected to a breathalyzer test without a warranted court order as a search incident to the arrest. The decision hinged on the definition of “unreasonable” in the context of the Fourth Amendment, which states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”

In the mind of the majority opinion, breath tests are not “unreasonable” since they require very little effort on the part of the participant. “The physical intrusion is almost negligible,” wrote Justice Samuel A. Alito Jr. for the majority opinion, clarifying that “the effort is no more demanding than blowing up a party balloon.”

On the other hand, the court found that “blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”

The decision could affect anyone who has been arrested for a DUI recently and subjected to a blood test, and it will also certainly mandate changes to state laws regarding DUI.

Consent Can Only Be Implied So Far

Birchfield v. North Dakota, No. 14-1468 was the docket listing for the case, which involved multiple arrests conducted in the state of North Dakota and Minnesota. North Dakota and nine other states have laws that require “implied consent” to testing and criminal penalties for refusing that testing after a DUI arrest. Anyone who obtains a driver’s license in these states accepts that they may be subjected to a “chemical analysis test” without the need for a warrant. Drivers who refuse a test have committed a crime under these laws, and they may be subject to criminal penalties as well as a license suspension, regardless of if they are charged with other crimes during the incident.

Typically, drivers suspected of operating their vehicle under the influence (DUI) are asked to submit to a breath analysis. If they refuse a breathalyzer test at the scene, they are often arrested and brought back to jail where they must submit to a blood or breath test, again without a warrant.

Under the Supreme Court’s finding, blood tests must be done with consent or a search warrant. An individual can still choose to refuse a breath or blood test, but the suspect cannot be found guilty of a crime if they refuse to take a blood test before a warrant orders it.

Speaking on the difference between the two, justices noted that breath tests do not demand much of the subject — they do not cause pain or discomfort, and they only reveal one bit of information: the suspect’s BAC based on breath particles. Blood tests, by contrast, can determine a host of external information usable as evidence by the police. Also, unlike breath tests, blood samples can be saved for months, allowing police to conduct other screenings later on.

Justice Sotomayor along with Ruth Bader Ginsburg partially dissented, writing the opinion that both tests violated Fourth Amendment rights. Justice Clarence Thomas also partially dissented, stating he did not think either a breath or blood test should require a warrant.

Fighting for Your Rights Against an Implied Consent Blood Test or DUI Arrest

In light of this new decision, many people facing pending DUI charges will likely have a different take on their case. Anyone who has been arrested or had legal penalties enacted against them as a result of violating Kansas’ implied consent law for blood tests may be able to get prosecutors to modify or drop their charges.

If you have been charged with DUI and think the new law may affect your case, contact Norton Hare to speak with one of our experienced defense attorneys about your rights under the SCOTUS decision. Call 913-906-9633 for a free case evaluation today.

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