US Supreme Court Rules that Warrantless Breath Tests are Constitutional: Warrantless Blood Tests are Not

In June 2016, the U.S. Supreme Court struck down part of Minnesota’s DWI/DUI law criminalizing refusal to submit to a chemical blood alcohol concentration (BAC) test if suspected of driving while intoxicated. At issue was the disproportionality between the actual DWI penalties and the refusal penalties. In other words, the state’s criminal penalty for refusal exceeded the criminal sanctions for the DWI.

The case, State v. Bernard, involved a Dakota County resident—William Bernard—arrested in 2012 after police found him walking around dazed, reeking of alcohol, and in his underwear with his truck perched precariously on an area boat launch. Bernard claimed he had, indeed, been drinking, but was not driving. He refused to take a chemical test for what could be his fifth DUI charge.

At issue was the recent decision by the US Supreme Court that requires officers to get warrants for DUI blood tests but not for breath tests.

Minnesota’s Implied Consent Law

Minnesota’s implied consent law (Minn. Stat. Sec. 169A.51) criminalizes motorists who refuse a breath, blood, or urine test for a suspected DWI/DUI. At the heart of the issue is worry that requiring invasive warrantless BAC tests violated individuals’ Fourth Amendment rights against unlawful searches and seizures as well as their due process protections pursuant to both federal and state Constitutions.

In Bernard, the Minnesota Supreme Court held that a warrantless breath test did not violate individuals’ Fourth Amendment protection against illegal searches and seizures because the necessity to test drivers’ BAC levels outweighed the minor privacy infringement such a test would involve.

The U.S. Supreme Court Weighs In

The case ultimately went to the U.S. Supreme Court that held that a blood test was significantly more intrusive than a breath test and a warrant was required for the former. The majority held that punishing a motorist for refusing a warrantless blood test was not included in the state’s implied consent law; however, requiring a breath test or face additional criminal sanctions was not improper because:

  • Breath tests are neither intrusive or painful
  • Air is not part of a human’s body, unlike blood
  • Humans have never had a “possessory interest or emotional attachment” to lung air
  • Breathing is a natural process and air is automatically exhaled at some point

However, a blood test is, in fact, intrusive, and the Court held that police officers must obtain a warrant for such a test and the court cannot penalize an individual for refusing a warrantless blood test.

In dissent, Justice Thomas argued that there was little difference between breath and blood tests and that neither should require a warrant.

Additional Minnesota Case Law

Since the Bernard ruling, the Minnesota Supreme Court held that without any exigent circumstances such as a driver’s unconsciousness, for example, requiring a motorist to take a warrantless blood or urine test or be prosecuted was, in fact, unconstitutional. The Court also heard State v. Thompson and State v. Trahan and upheld its ruling that refusing a breath test was a crime because there was no unreasonable burden on the motorist for this type of test; however, blood and urine tests were different.

In Thompson, Chief Justice Lorie Gildea ruled that a warrantless blood or urine BAC test was not a legitimate search incident to arrest. She cited Birchfield v. North Dakota in which the U.S. Supreme Court put forth a balancing test to weigh the compelling government interest against an individual’s privacy rights. She ultimately held that whereas preventing drunk driving is, in fact, a compelling government interest, it was not narrow enough to infringe upon an individual’s rights. Further, even though a urine test isn’t as intrusive and/or painful as a blood test, obtaining a urine sample does invade a subject’s privacy and may cause substantial embarrassment.

In Trahan, the question was one of exigency. Under the law, exigent circumstances exist in cases where a police officer reasonably and objectively believed there was an emergency, and a delay from having to obtain a warrant would likely “significantly undermine the efficacy of the search.” In this case, there was no exigency—normal alcohol dissipation during the time required to obtain a warrant was not an emergency to justify violating the defendant’s constitutional rights.

For more information, or if you or a loved one is facing a DWI/DUI or other alcohol-related charge, please contact us.