This morning, the Supreme Court will hear oral arguments in Birchfield v. North Dakota, a case consolidated with two others to address the following issue: in the absence of a warrant, can a state make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood?

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This morning, the Supreme Court will hear oral arguments in Birchfield v. North Dakota, a
case consolidated with two others to address the following issue: in the absence of a
warrant, can a state make it a crime for a person to refuse to take a chemical test to
detect the presence of alcohol in the person’s blood?
In North Dakota, for instance, any individual who operates a motor vehicle on any public
or private road in the state is deemed to have consented to a chemical test of his or her
blood, breath, or urine for the purpose of determining any intoxication levels. In 2013, the
state amended this statute to make refusal to take the test directed by a police officer a
crime punishable in the same manner as driving under the influence (“DUI”). Minnesota,
the other respondent state in the case, has a similar law that makes it a criminal offense
for a driver who has been arrested on probable cause for driving while impaired to refuse
a chemical test. The United States, which has written an amicus brief on behalf of the
states, makes it a misdemeanor for anyone driving in the National Parks to refuse a
chemical test requested by an officer with probable cause to believe that a driver is
impaired.
North Dakota’s brief emphasizes the severe problem of drunk driving in the United
States: “Between 2005 and 2014, 112,998 people were killed in alcohol-impaired-driving
crashes.” In 2012, North Dakota had the highest drunk-driving death rate in the country,
with 11.3 deaths per 100,000 people. The state also explains that early laws criminalizing
drunk driving were difficult to enforce because of the evidentiary problem of proving that
drivers were intoxicated. But with the advent of new testing procedures, new laws were
passed that permitted the use of blood alcohol concentration (“BAC”) as evidence of
intoxication. Under these laws, prosecutors no longer had to prove actual impairment; a
BAC above a certain level was generally enough to secure a DUI conviction. To aid these
efforts, North Dakota imposed penalties—like revoking a driver’s license—on suspected
drunken drivers who refused to submit to chemical tests.
Yet legislators were still concerned with the numbers of impaired drivers who escaped
punishment by refusing chemical tests for alcohol and drugs. In 2011, 18.8 percent of
those arrested for driving under the influence (over 1,000 people) refused to take a
chemical test. These people were more difficult to prosecute criminally because of the
lack of concrete evidence to convict them. And the primary administrative punishment for
refusal (i.e., revoking their licenses) had little deterrent effect because offenders would
simply continue to drive without a license. Thus, the state decided to impose criminal
penalties on refusal to submit to a test. Minnesota’s brief explains that its law was also
enacted for similar reasons, to help combat “the terrible toll drunk drivers exact on
society.”
Danny Birchfield, the petitioner in the first case, drove his car off of the road in North

2. Dakota, and failed a field sobriety test administered by a highway patrol officer. A
preliminary breath test suggested that he was intoxicated; the officer placed him under
arrest and read him the state’s mandatory implied consent advisory, which informed him
that the law required him to submit to a chemical test, including a blood test, and that
failure to do so was a crime. Birchfield nonetheless refused to submit, and was charged
accordingly. He moved to dismiss the charge, arguing that it was unconstitutional under
the Fourth Amendment for a state to criminalize refusal to submit to a chemical test of a
driver’s blood. A court denied his motion to dismiss. That decision was upheld by the
North Dakota Supreme Court, which ultimately found that the law was constitutional.
But Birchfield disagrees. He argues that the criminal penalty imposed by North Dakota
punishes a person’s refusal to surrender their right under the Fourth Amendment to resist
an unwarranted search. In 2013, the U.S. Supreme Court, in Missouri v. McNeely (2013),
held that “in drunk-driving investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case sufficient to justify conducting
a blood test without a warrant.” Thus, as the Birchfield brief states, “we assume all agree
that a State may not subject people to criminal sanctions for exercising rights granted
them by the Constitution—which means, in the context here, that a person may not face
criminal penalties for refusing to submit to a search that is not authorized by a warrant or
permissible under an exception to the warrant requirement.” But that is what North
Dakota and other states have done: made it a crime for persons suspected of DUI to
decline to submit to warrantless chemical tests, which cannot be squared with McNeely.
Birchfield states that these criminal test-refusal penalties are unreasonable because they
apply even when the person prosecuted for refusal to submit to a warrantless search was
not charged with—or, indeed, was acquitted of—driving while impaired.
The American Civil Liberties Union—which was counsel of record in McNeely—filed an
amicus brief supporting Birchfield. The ACLU concedes that drunk driving “is a serious
threat to public safety. But the disputed statutes in this case do not criminalize drunk
driving. They criminalize the assertion of a constitutional right. And that is something the
government cannot do.” Since these chemical tests are searches under the Fourth
Amendment, declining to submit to a warrantless search falls squarely within the ambit of
that constitutional provision. An individual has a constitutional right to refuse to consent to
such a search and insist that the police obtain a warrant. Therefore, the ACLU argues,
the government cannot criminalize that conduct.
But North Dakota insists that, by definition, the Fourth Amendment is not implicated
unless there is a search; because Birchfield never took a test, the state says, he was
never actually “searched.” In the companion case Bernard v. Minnesota (in which the
petitioner Bernard did consent to a breath test but only after being told of the criminal
penalties for refusal) Minnesota also argues that, per the Court’s decision in United
States v. Robinson (1973), there is a bright-line rule that police officers may, without a
warrant, always conduct a full search of a person who has been lawfully arrested. In
Bernard, the Minnesota Supreme Court relied on the rule from Robinson to hold that a

3. warrantless breath test of a suspect lawfully arrested for driving while impaired does not
violate the Fourth Amendment because it is a search incident to lawful arrest. So,
because a police officer can compel a suspect to submit to a breath test, it does not
violate the Fourth Amendment to criminally charge the suspect for refusing to take the
test.
Mothers Against Drunk Driving (MADD) filed a brief on behalf of the respondent states,
citing its support for enforcement efforts aimed to end drunk driving, like the laws at issue
here. MADD argues that “nothing in the Constitution or in the Court’s jurisprudence
requires a per se ban on all criminal penalties in this area.” Since the Supreme Court has
upheld the right of states to impose administrative penalties—like license revocation, in
South Dakota v. Neville (1983)—for refusing to submit to a test, in this case “the critical
question is not whether a state may penalize an arrested driver’s refusal to consent to a
warrantless BAC test,” but rather “what ‘penalty’ or ‘significant consequences’ a state
may choose” in order to further its “compelling” interest in trying to reduce the damage
caused by drunk driving. And Fourth Amendment cases often reject categorical rules in
favor of a case-by-case analysis based on the “totality of circumstances.” MADD
therefore argues that the Court should “continue to permit state legislatures in the
federalism laboratory to experiment with the most effective mix of incentives to reduce
and ultimately end the undisputed scourge of drunk driving.”
The states also build upon this point: even if the law does intrude upon the Fourth
Amendment, the intrusion is justified due to the states’ compelling interest in protecting
public roadways. Meanwhile, a breath test, for instance, is only “minimally intrusive.” And
as Minnesota argues, its law is “carefully tailored to meet the government’s interest in
combating drunk driving”; an officer can only request a breath test from a suspect after
the officer has probable cause to believe the suspect is driving while impaired. Therefore,
the law really only comes into play against a subset of people that the government has a
great interest in obtaining a breath test from, because it already has good reason to
believe they are driving drunk.
Finally, as the United States brief reiterates, the states are not actually forcing a person
to submit to a test, but are just conditioning permission to drive on consent to testing. “No
blanket ban exists on conditioning government benefits on search requirements,” the
United States asserts. Birchfield and the ACLU have argued that driving is so necessary
(especially in rural states like North Dakota) that “it is impermissibly coercive for a State
to attach test conditions to it,” but the government responds that the Supreme Court has
treated the right to drive as a paradigmatic privilege to which states may attach
conditions: “The relevant condition here is that, in exchange for the privilege of driving,
the driver relinquishes any right to refuse a chemical test under certain limited conditions.
Given the validity of that condition, the use of traditional state enforcement mechanisms
to secure compliance cannot be considered disproportionate.” And criminal enforcement
is a better alternative to nonconsensual, or forcible, chemical testing, which could result
in violent confrontations.

4. The Supreme Court first examined the issue of forcible bodily testing in Rochin v.
California (1952), where the Court held that forcibly pumping the stomach of a criminal
suspect in order to extract evidence—two capsules of drugs which the person had
swallowed—constituted a violation of the Due Process Clause of the Fourteenth
Amendment (this was pre-Mapp v. Ohio (1961), in which the Court incorporated the
Fourth Amendment against the states). Such conduct “shocks the conscience,” the Court
said, and constituted “methods too close to the rack and the screw to permit of
constitutional differentiation.” Several years later, in Breithaupt v. Abram (1957), the Court
distinguished Rochin, and found that a forcible blood test of a DUI suspect “taken by a
skilled technician [does] not . . . ‘shock[] the conscience.’”
In 1966, the Court decided Schmerber v. California, in which it examined the chemical
test issue under the Fourth Amendment for the first time. While Schmerber was
hospitalized after an accident, his BAC was tested, and he was convicted of DUI based
on the test. The Court ruled that the test did constitute a search or seizure under the
Fourth Amendment, but that it was reasonable under an exigency exception: because of
the natural metabolization of alcohol in the bloodstream, an immediate test was needed
to preserve the evidence, and was allowable. The Court, citing Breithaupt, also
emphasized the reasonableness and “ordinariness” of a blood test conducted in a
hospital setting.
In 2013, however, Justice Sonya Sotomayor wrote the Court’s 5-4 plurality decision in
McNeely, which distinguished its decision in Schmerber. In McNeely, the defendant had
been arrested for DUI after failing field sobriety tests, but he refused to take a breath test;
the arresting officer then transported him to a hospital where his blood was forcibly
withdrawn. McNeely moved to suppress the blood test as being unconstitutionally
obtained without a warrant. Missouri tried to argue that, based on Schmerber, drawing
McNeely’s blood was per se constitutional without a warrant under the exigency
exception.
But Sotomayor’s opinion emphasized that a blood draw constitutes an invasion of bodily
integrity that implicates an individual’s “most personal and deep rooted expectations of
privacy.” And as opposed to Schmerber, which was decided in 1966, getting a warrant
isn’t as difficult today; the state’s position in McNeely failed “to account for advances in
the 47 years since Schmerber was decided that allow for the more expeditious
processing of warrant applications, particularly in contexts like drunk-driving
investigations where the evidence offered to establish probable cause is simple.” Despite
this, the Court did rule, however, that certain exigent circumstances could allow for a
warrantless BAC test, but this should be examined on a case-by-case basis. And the
Court noted that the opinion did not “undermine the governmental interest in preventing
and prosecuting drunk-driving offenses,” maintaining that states have “a broad range of
legal tools to enforce their drunk-driving laws and to secure BAC evidence without
undertaking warrantless nonconsensual blood draws.”

5. In Birchfield, the Court will have to decide whether implied consent to chemical testing
laws with criminal sanctions for refusal are one of these constitutional tools.
ISweek（http://www.isweek.com/）- Industry sourcing & Wholesale industrial products

6. In Birchfield, the Court will have to decide whether implied consent to chemical testing
laws with criminal sanctions for refusal are one of these constitutional tools.
ISweek（http://www.isweek.com/）- Industry sourcing & Wholesale industrial products