Update on Bernard v Minnesota and warrantless DUI breath tests

After hearing arguments in the context of three consolidated cases from states that make it a crime to refuse a breath or blood test,  Birchfield v. North Dakota, Beylund v. Levi (North Dakota), and Bernard v. Minnesota, the U. S. Supreme Court held that states and their law enforcement agencies may legally demand a driver to submit to a breath or blood test even without a warrant, and the driver's refusal to do so may be an additional crime. See Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). However, the Court did strike down Minnesota's law allowing law enforcement personnel to force a suspect to submit to a chemical test as a DUI suspect.

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Is this the end of warrantless DUI chemical test searches? ... stay tuned.

Today the Supreme Court of the United States has heard, and projected support for, the argument that states must attempt to obtain warrants for chemical tests, e.g. blood and breath tests, for drivers suspected of DUI.  

The states' advocate argued that it was not feasible to obtain a warrant in every DUI arrest because the states do not have the resources to man phones and implement digital warrant systems, and therefore should be excused from the requirements of the Fourth Amendment to the U.S. Constitution. But the Court seemed to reject that argument as reflected in Justice Sotomayor's response,

So that (the burden of getting a warrant) excuses you from a constitutional requirement? We’re now going to bend the Fourth Amendment?

The arguments were heard in the context of three consolidated cases from states that make it a crime to even refuse a breath or blood test.  Birchfield v. North Dakota, Beylund v. Levi (North Dakota), and Bernard v. Minnesota. Even so, if the Court holds that implied consent laws and the exigent circumstances exception to the Fourth Amendment's warrant requirement do not always relieve the states' burden of obtaining warrants to gather blood alcohol evidence, the Court may open the door to attack warrantless chemical test searches in DUI cases across the country.

While the Justices appeared to take the middle ground between safety interests and civil liberties, states and municipalities are going to be left wondering how to implement laws and procedures to comply with the holding if it is handed down in the anticipated form.

It should be noted that in 2013 the Court held that in a typical DUI case, a warrant is required to draw a suspect's blood, but that the exigent circumstances exception to the requirement might relieve the police of that burden in some instances. Missouri v. McNeely, 133 S.Ct. 1552 (2013). Chief Justice Roberts, in a partial dissent from the McNeely opinion, complained that the majority decision provided law enforcement no guidelines on what circumstances require or excuse a warrant before obtaining a blood sample.  Roberts wrote,

A police officer reading this Court's opinion would have no idea — no idea — what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's 'totality of the circumstances' approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

Id at 1569.

Will the Court's ruling in the Birchfield cases provide additional guidance on what circumstances obviate the need for a warrant to obtain a blood sample? If those exigent circumstances are rare, will hundreds of thousands of affidavits in support of warrant requests by law officers be generated electronically, and emailed to somnambulant jurists in the country’s largest cities and sleepiest rural burgs during night hours, when most DUI arrests are made? In 2014, more than 1.1 million people were arrested for DUI [1]. Thousands of special DUI magistrates will have to be hired and equipped with special computerized warrant affidavit review systems if a warrant is required in almost every case. That may be constitutionally required, but that new regime is going to be a mess in the nacent stages and generate plenty of litigation concerning the sufficiency of the affidavits. Or, states and municipalities will revise their protocols for DUI arrests, and limit chemical test demands to more aggravated cases.

[1] Department of Justice (US), Federal Bureau of Investigation (FBI). Crime in the United States 2014: Uniform Crime Reports. Washington (DC): FBI; (2015). 

https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-29

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