Supreme Court strikes down warrantless blood test for DUI suspects in case from North Dakota

States cannot levy criminal penalties against suspected drunk drivers who refuse to submit to a warrantless blood test, the U.S. Supreme Court ruled Thursday in a case that originated in North Dakota.

States cannot levy criminal penalties against suspected drunk drivers who refuse to submit to a warrantless blood test, the U.S. Supreme Court ruled Thursday in a case that originated in North Dakota.

The decision deals a blow to states such as North Dakota that criminalize the refusal of those tests. But the nation's highest court said the Fourth Amendment permits warrantless breath tests, calling their physical intrusion "almost negligible."

"Because the impact of breath tests on privacy is slight, and the need for (blood alcohol content) testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving," the opinion, delivered by Justice Samuel Alito, states. "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," the court added.

Three cases


The Supreme Court's decision comes roughly three years after North Dakota lawmakers increased penalties for drunk driving offenses.

Danny Ray Birchfield, whose name headlines the three consolidated cases that went before the Supreme Court, was arrested in 2013 in North Dakota after a preliminary breath test showed he had a blood alcohol level more than three times the legal limit. But he refused to consent to a blood test after he was arrested by a North Dakota Highway Patrol officer for driving under the influence, which earned him a misdemeanor charge.

The North Dakota Supreme Court upheld Birchfield's conviction in January 2015. The U.S. Supreme Court said Thursday motorists "may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them."

But in a related case that was included in Thursday's decision, the court said a Minnesota man had no right to refuse a warrantless breath test.

Dan Herbel, a Bismarck attorney who represented Birchfield, said they were pleased the justices agreed states could not criminalize the refusal of a warrantless blood test. But he was surprised "they created a new exception for breath tests."

And in the third of the consolidated cases, the court said the North Dakota Supreme Court should re-evaluate a man's consent to a blood test. Steve Michael Beylund agreed to have his blood drawn after an arresting officer informed him refusing a test was a crime, and the BAC test showed a level more than three times the legal limit. Beylund argued that his consent to the test was coerced by the officer's warning, according to the court's decision posted online.


Calling Thursday's decision a "compromise," Mark Friese, a defense attorney at the Vogel Law Firm in Fargo acknowledged law enforcement needs effective tools to combat drunk driving.


"But I also believe people have individual rights that need to be respected," he said. "And if a person refuses testing, they should face a very onerous driver's license penalty rather than being prosecuted with a crime."

Wayne Stenehjem, North Dakota's Republican attorney general, said his office will help revise the advisory police give to DUI suspects.

"I think we can comply with the ruling without too much difficulty," he said. "Most of the tests that are given for DUI are the breathalyzers, and that law is fairly intact."

Adam Vanek, general counsel of Mothers Against Drunk Driving, which backed the states in the Supreme Court case, said the organization was "pleased" justices affirmed states' rights to charge suspected drunk drivers for refusing to submit a breath test. But his emailed statement did not mention the court's decision on blood tests.

The Foundation for Advancing Alcohol Responsibility, a national nonprofit, said states should implement programs that quickly secure warrants for blood tests.

"These programs are in compliance with today's decision and prevent suspects from escaping consequences for drunk and drugged driving," the organization's president and CEO, Ralph Blackman, said in a statement.

North Dakota Sen. David Hogue, R-Minot, who chairs the Senate Judiciary Committee, said the state's judicial branch may establish some kind of on-call system "so we can get warrants for blood draws where necessary, where a breathalyzer will not be acceptable."

"Our job is not to be elated or disappointed, it's just to react to it and to reformulate our policy based on what the Constitution requires and permits," he said.

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