Legal questions posed by friends and family are expected by most lawyers. What is unexpected is one recurrent question.
“Should he blow?”
Other lawyers who double as parents of high school- and college-age drivers will surely relate.
Never mind the field of practice. Real estate, patent prosecution and ERISA lawyers will all be approached by parents seeking advice for their kids. If and when they get pulled over by a law enforcement official showing interest in their blood-alcohol levels, should the kids “blow” or submit to a warrantless breath test? Can they refuse?
The correct legal answer is tantalizingly close.
Every state in the country has some form of an “implied consent” law imposing penalties on drivers who decline an officer’s invitation to undergo sobriety testing after a DUI stop. The states’ common view is that by applying for and accepting their driver’s licenses, motorists implicitly consent to such testing, and a warrant is unnecessary.
The Illinois Vehicle Code, for example, states any driver “shall be deemed to have given consent” to chemical testing if suspected of driving under the influence.
The classic argument for mandatory testing without waiting for a warrant to be obtained used to be that with the passage of time, the body metabolizes alcohol. In Missouri v. McNeely, 133 S.Ct. 1252 (2013), however, the Supreme Court found that the natural dissipation of alcohol in the bloodstream is not automatically an exigent circumstance that would justify a warrantless search.
To get around the inconvenient McNeely decision, states made a separate crime of refusing alcohol testing. “Driving is a privilege, not a constitutional right and is subject to reasonable control by the state,” reminded Justice Lisa K. Fair McEvers of the North Dakota Supreme Court in State v. Birchfield, 2015 ND 6 (N.D. 2015), affirming such a criminal conviction.
In that case, Danny Birchfield, arrested after driving into a ditch, failed a breath test and then refused to submit to blood testing. He challenged the constitutionality of North Dakota’s statute on appeal. The North Dakota Supreme Court unanimously upheld, finding it a reasonable means to discourage driving while intoxicated. Driving privileges may be conditioned on the driver’s “deemed agreement to consent to a chemical test.”
Birchfield appealed to the U.S. Supreme Court. The high court granted certiorari on Dec. 11 and consolidated Birchfield’s appeal with another North Dakota appeal and one from Minnesota. Both involved suspected drunken drivers who failed “to blow” and later challenged the constitutionality of warrantless mandatory testing.
In the underlying Minnesota Supreme Court decision, breath testing was deemed a permissible search because it was incident to an arrest and that court also linked the criminalizing of a refusal to blow with keeping the roads safe. State v. Bernard, 859 N.W.2d 762 (Minn. 2015). The dissent of Justice Alan Page began: “The court apparently wishes that we lived in a world without Missouri v. McNeely … and one in which there are no limits to the search-incident-to-arrest doctrine.”
North Dakota and Minnesota are among 13 states that criminally punish drivers for refusing warrantless blood-alcohol testing. In Minnesota, a mandatory minimum of three years imprisonment applies to a refusal.
The consolidated Birchfield appeals squarely pose the question unanswered in McNeely as to whether a motorist enjoys a right grounded in the Fourth Amendment’s protection against unreasonable searches to refuse to blow into a state’s breath-analysis device or submit to blood testing.
In the Minnesota petition, William Bernard argues states are “giving greater constitutional protection to an arrestee’s pockets or handbag than to the arrestee’s body.”
In Illinois, a refusal to blow can be used as evidence in any civil or criminal proceedings, and a driver’s license can be suspended for up to a year. The Illinois implied consent statute is likewise facing a challenge at the U.S. Supreme Court.
A cert petition is pending in Gaede v. Illinois, No. 14-10423, an appeal arising from downstate motorcyclist Christopher Gaede’s 2013 drunken driving conviction. Gaede was pulled over by a police officer after allegedly hitting a parked truck and fleeing the scene.
Smelling alcohol on his breath and observing bloodshot eyes, the officer administered field sobriety tests. Gaede performed poorly and was taken to the Macon County jail where he refused to blow. This refusal was used against him at trial, and he was sentenced to 24 months’ court supervision.
On appeal, the 4th District Appellate Court rejected Gaede’s claim that the Constitution provides him with the right to refuse breath-testing. People v. Gaede, 2014 IL App (4th) 130346.
If his cert petition is granted, Gaede will challenge the constitutionality of the Illinois Vehicle Code’s “shall be deemed to have given consent” to chemical-testing language. Gaede argues in his petition that such implied consent statutes are “warrant-avoidance devices” that seek to “legislate Fourth Amendment rights out of existence.”
While the overriding safety issues will likely lead the Supreme Court to uphold implied consent statutes, both Gaede and the Birchfield petitioners raise important arguments. Unlike other criminal cases where police must collect evidence and establish probable cause to make an arrest, the burden appears reversed for a DUI suspect asked to blow.
That driver faces the untenable choice of either arming the state with incriminating evidence, or suffering automatic, pre-conviction punishment for failing to do so.
Requiring a driver convicted of no crime to assist the state with prosecuting him or her presents significant Fourth Amendment and due process issues — and seems inconsistent with McNeely.
In particular, the constitutional prohibition against unreasonable searches stands out. As the author and educator Tim Wise has opined, “violating the Fourth Amendment guarantees against illegal searches and seizures is not the way to solve crime problems.”