For years, Police have added charges for refusal to consent to alcohol breath or blood tests using “implied consent” laws. Recent changes from the U.S. Supreme Court may have a big impact upon testing for drunk and drugged driving.
Many states, including Virginia, require drivers to consent to a breath or blood test by laws. These laws were challenged recently, and the Supreme Court considered whether state “implied consent” laws adding criminal penalties for test refusal for reasonable suspicion of drunk driving violate the Constitutional protections against unreasonable searches.
Birchfield v. North Dakota
This Supreme Court case was actually appeals from three cases from different states. Each of them involved intoxicated drivers. One of them discovered in his underwear but still holding the keys of his vehicle. Each of them were tested or convicted for a refusal to consent under “implied consent” laws. After convictions, the individuals each appealed their state’s implied consent laws as violating their Fourth Amendment protections.
Personal Privacy v. Stopping Drunk Driving
The court applied a balancing test: the intrusion of privacy interest by a breath or blood test against the importance of the discovering drunk drivers. The Court affirmed its prior position that a breath tests are not serious privacy intrusions. The blood test is very different, involving a “compelled intrusion beneath the defendant’s skin and into his veins.” The small intrusion of the breath test is an acceptable post-arrest search without the need for a warrant. The court also pointed out simple tests like breathalyzers are better than high-visibility DUI checkpoints. A blood test is simply too invasive. Such invasion is unnecessary with the availability and success of breath tests.
New Rule on Implied Consent Laws
Warrantless breath tests incident to arrest are permissible under the Fourth Amendment. However, the intrusive nature of blood tests, a warrantless blood test for BAC is unconstitutional under the Fourth Amendment. A state cannot use the implied consent laws to deem a motorist to have consented to a blood test, and cannot impose criminal offenses for such refusal.
If you have been drinking, call a cab or use a ride ordering service app. However, If you do find yourself in an unfortunate situation where you are being questioned about your drinking and driving, do the smart thing: ask to see the lawyers ready to defend you and protect your rights – Virginia Beach Criminal Defense Attorney, Braden Carroll. Contact us for a free consultation.
Birchfield v. North Dakota, 579 U.S. ___ (2016) (slip opinion),