Did you know all fifty states currently require drivers suspected of driving while intoxicated to submit to blood-alcohol content testing, and penalize for a refusal to do so?
In its recent opinion dated June 23, 2016, the United States Supreme Court in Birchfield v. North Dakota addressed the issue of whether warrantless blood and breath testing is permissible under the Fourth Amendment.  This issue was left open in the Court’s 2013 decision of Missouri v. McNeely, and has significant implications with respect to implied consent laws.

Under the Fourth Amendment, a law enforcement officer may not conduct a search of a person without first obtaining a warrant.  However, there are numerous exceptions to this general rule, one being that searches of a person “incident to a lawful arrest” need not require a warrant.  Noting that the Fourth Amendment does not provide guidance on the types of breath or blood tests presently at issue, the Court engaged in an analysis similar to that seen in Riley v. California, examining the degree to which these searches intrude upon an individual’s privacy versus the degree to which they are needed for the promotion of legitimate governmental interests.

The Court first examined the private interests at issue.  First, it noted that the physical intrusion involved in requiring an individual to submit to a breath tests is essentially negligible.  A breath test is limited in the sense that it only reveals the amount of blood alcohol in a breath sample. No other personal or biological information is retained in the breath testing process.  Finally, the Court found that there is no significant increase in the embarrassment a subject faces when providing a breath sample.

Next, the Court discussed those same factors with respect to blood testing.  Unlike breath tests, a forced blood test requires piercing a subject’s skin and extracting a portion of the subject’s body.  This process, the Court found, was significantly more intrusive than blowing into a breath testing tube.  It additionally provides a physical sample which law enforcement agencies would be able to preserve, and from which it is possible to extract information beyond a simple blood-alcohol content reading.

Balanced against these private interests, the Birchfield Court then turned to the government’s need in acquiring a blood-alcohol content reading.  First, the Court noted the importance of deterring drunk driving, the leading cause of traffic fatalities and injuries in the United States.  Additionally, a requirement that law enforcement officers seek a warrant in every case would significantly overburden the courts with routine requests.

The Supreme Court ultimately ruled that due to the relatively minor intrusiveness involved in requiring a breath sample, and because permitting these searches serves law enforcement interests in most cases, a breath test may be administered as a search incident to a lawful arrest for driving while intoxicated.  However, this ruling was not extended to blood testing, which due to its intrusive nature, will continue to require that law enforcement officers seek a warrant before proceeding.

In all, the status quo remains largely the same for drivers in New Jersey, since state law provided essentially the same rights afforded under the Birchfield ruling.  While warrantless breath testing was upheld by this decision, various defenses still remain for those charged with a refusal to submit to breath testing.  For example, under New Jersey state law, an officer must still read to a driver a standard statement detailing the driver’s rights as well as the potential consequences of a failure to comply.  The statement must be read fully, and in a language that the driver understands; confusion as to the legal obligation to provide a breath sample may present a valid defense to a refusal charge.  A driver’s equivocal answer to the initial statement further requires the reading of an additional portion of the standard statement.  Physical incapability to provide a breath sample, such as for medical reasons or due to old age, may also provide a valid defense.  Finally, a defendant may still defend against a refusal charge by demonstrating that the State lacked either a basis for stopping the car in the first place, or probable cause to justify the arrest of the driver.  In these circumstances, drivers charged with refusal should consult with an attorney to ensure their rights are protected.

Author: Andrew Ball