By Andrew Cannito
Founder and Vice President of Homeland Security Network at American Military University
Each state in the United States has some legal statute prohibiting the operation of a motor vehicle when the driver is under the influence of alcohol. While laws and penalties vary substantially from one state to another, all 50 states have established that driving with a blood alcohol concentration (BAC) at or above .08% is a crime, according to the Governors Highway Safety Association.
‘Implied Consent’ Laws Mandate that Drivers Automatically Consent to Drunk Driving Tests
Most states have “implied consent” laws. When a citizen applies for a driver’s license, he or she automatically gives consent to field sobriety tests and chemical testing to determine the presence of alcohol and level of impairment.
For example, New York State Vehicle and Traffic Law, Section 1194(2)(a) states that “Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine or saliva, for the purpose of determining the alcoholic and/or drug content of the blood.”
Like many other states, New York has a statute that facilitates the immediate arrest of individual drivers and forfeiture of their licenses should they refuse to submit to a chemical breath test. Despite the severe consequences of refusing, many motorists facing alcohol-related charges refuse a test anyway. A conviction after an arrest is difficult to obtain if law enforcement cannot prove a driver’s blood alcohol concentration was high enough to violate the law.
Refusing Blood Test Led to Misdemeanor Arrest in North Dakota Drunken Driver Case
Some states have criminalized the refusal to comply with a breath test and have given officers the justification to secure a blood sample in order to preserve evidence of intoxication. Typically, collecting a blood sample was justified as a search incident to arrest or “SIA.” Failure to submit to blood testing became yet another crime motorists faced. This was the case in Birchfield v. North Dakota.
According to a North Dakota Supreme Court document (No. 20140109), Danny Birchfield was involved in a motor vehicle accident in Morton County, North Dakota on October 10, 2013. A State of North Dakota highway patrol officer arrived on the scene and suspected that Mr. Birchfield was intoxicated. The highway patrolman performed a series of standard field sobriety tests (SFSTs), which Mr. Birchfield failed.
Subsequently, Mr. Birchfield was subjected to a preliminary breath test, which showed a .254% blood alcohol concentration. At that time, the highway patrolman placed Mr. Birchfield under arrest and explained to him the state’s implied consent advisory. Birchfield refused to submit to a chemical test and was consequentially charged with violating North Dakota Century Code §39-08-01, which was a Class B misdemeanor.
North Dakota Driver Case Causes Change in Blood Evidence Collection
Birchfield moved to dismiss the misdemeanor charge, arguing that the chemical test violated his Fourth Amendment right against illegal search and seizure and was unconstitutional.
After a series of appeals over the course of almost three years, the U.S. Supreme Court ruled on the case, changing how law enforcement secures chemical testing evidence in cases involving drinking and driving. The U.S. Supreme Court issued a writ of certiorari, compelling the lower court to turn over all documents in the Birchfield case for review.
After reviewing these documents, the United States Supreme Court ruled in favor of Mr. Birchfield in Birchfield v. North Dakota on June 23, 2016. The Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to a lawful arrest in cases of drunk driving, but not warrantless blood tests.
The Supreme Court also argued that non-consensual blood tests not only violate the Fourth Amendment because of the intrusion into a person’s body, but also because the sample obtained from a blood test can be preserved and used by the government for purposes other than establishing a blood alcohol concentration.
Fourth Amendment Protects Individuals from Illegal Search and Seizure
The Fourth Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Evidence obtained from a person’s body, by its very nature, requires a seizure of that person. Once a person is lawfully seized, the issue of “reasonable expectation of privacy” or “REP” becomes a matter of whether the evidence being seized is inside or outside of the person’s actual body.
The physical intrusion of penetrating a person’s body with a foreign object in an effort to extract something from a part of the subject’s body infringes upon that individual’s REP. Such an intrusion would be considered a search, requiring a warrant, consent from the individual or a warrant exception such as exigency.
Exigent Circumstances for Blood Sample Collection to Be Determined by Individual Case
The “exigent circumstances” warrant exception permits law enforcement to secure evidence without a warrant when the police reasonably believe the destruction of evidence is “imminent.” The existence of alcohol in the bloodstream is inherently temporary and will dissipate over time to a level that no longer constitutes an offense.
Unfortunately, this possibility was covered in the case of Birchfield v. North Dakota. The Supreme Court held that while there is a possibility of evidence being destroyed, they cannot and will not “depart from careful case-by-case assessment of exigency and adopt the categorical rule.” A “categorical rule” is a procedural decision or rule issued by the Supreme Court that is absolute and universally binding in every case in which it is applied. In this case, the Supreme Court refused to issue a categorical rule dictating that every case of DUI presents the warrant exception of exigent circumstances.
While this Supreme Court case establishes a clear and undisputable rule about obtaining search warrants for DUI blood tests, it leaves room for a lot of speculation and liability on the part of the arresting officer. Officers will have to continue to make a case-by-case decision of whether they have sufficient facts that would lead a reasonable person to believe the evidence is in imminent danger of being destroyed in the time it would take to first obtain a warrant. This topic will surely be the subject of judicial review for years to come until judges create a definitive answer regarding the exigency rule.
About the Author
Andrew Cannito has been a member of the emergency services community for about 10 years and has served in the United States Army for more than seven years. He currently works as a federal law enforcement officer. Andrew has worked in various disciplines with the public safety sector and continues to expand his diverse knowledge of the homeland security field. Andrew has an associate degree in fire protection technology from Schenectady County Community College and a bachelor’s degree in homeland security from American Military University. In April of 2015, Andrew founded and became the first elected President of the Homeland Security Network at American Military University.