Birchfield v. North Dakota (United States Supreme Court): Expectation of Privacy for Blood Samples in DUI Arrests

by Hon. H. Lee Harrell, Circuit Court Judge, Wythe County, Virginia

            The Supreme Court issued a decision on June 23, 2016, that sparked considerable interest in the realm of driving under the influence law enforcement and jurisprudence. At the heart of the decision is the constitutionality of laws that criminally punish drivers suspected of impaired driving who refuse to submit to blood and breath testing.  Whether these laws violate the Fourth Amendment or comply with the exception for searches incident to arrest is the question answered by the opinion.  Although the Court analyzes the issue as a question of privacy interests, the criminality of refusing is an essential component in the ruling.  The Commonwealth of Virginia’s refusal laws are hybridized between a civil penalty and a criminal penalty depending on the offender's criminal history. 

            The decision is actually three cases decided in a single opinion:  Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota.[1]  As is typical with Supreme Court case nomenclature, the opinion is developing the shorthand name "Birchfield."  Although all three cases are similar, the subtle distinctions between them are critical for understanding the rationale of the Court.  Birchfield was criminally convicted for refusing a blood test.  That conviction was reversed because the Court found that such compulsion is unconstitutional.  Bernard was criminally convicted for refusing a breath test.  That conviction was upheld because the Court found that such compulsion is constitutional.  Beylund consented to taking a blood test but argued the results should be suppressed because North Dakota's refusal law violates the Constitution's Fourth Amendment.  His case was remanded to determine whether such consent is valid given the Court's ruling.

            The opinion was delivered by Justice Samuel Alito.  Justice Clarence Thomas concurred in the judgment in part and dissented in part.  Justice Sonia Sotomayor dissented in part and was joined, in part, by Justice Ruth Bader Ginsburg.  Because there are three cases with the Justices ruling variously, the outcome is complicated but as to the main holding, it is a 7-1 opinion.

            The holding is, "[t]he Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests."  That holding is simple and straightforward, especially as it applies to the laws of the two states involved.  An officer can continue to rely on implied consent and refusal laws that have criminal penalties and compel a driver to take a breath test so long as that driver has been properly arrested for driving under the influence.  On the other hand, an officer may not use refusal laws with criminal penalties to compel a blood test; a search warrant is needed.  To arrive there, the Court reviewed its jurisprudence in searches incident to arrest. 

            The Birchfield Court analyzed implied consent testing of blood and breath through the search incident to arrest exception to warrantless searches.  Under that exception, an officer may search an individual who has been arrested.  Justice Alito traced the doctrine’s juridical development, and explained the ancient nature of the search incident to arrest.  Recognizing that technological development creates tests which could not have been contemplated by the Founders, the Court reflected back to its recent decision in Riley v. California.[2]  Riley held that the search of a cell phone incident to arrest was unconstitutional.  Utilizing a balancing test, the Court weighed the privacy interests of the person (and particularly the nature and use of smart phones) against the legitimate governmental interest in the search. 

The Court found that the privacy interests of the arrestee outweighed the government's interest in the search and deemed the cell phone search unconstitutional.  Birchfield uses the same test in arrival at its dual

            A breath test does not implicate significant privacy concerns. The Court illustrated the minor intrusiveness of the breath test by pointing out that it does not pierce the skin, causes no pain or discomfort, is minimally inconvenient and captures nothing but air (something everyone expels publicly and constantly).  Also important to the majority is the ephemeral nature of breath evidence.  Breath is gone seconds after exhalation.  There is no storage ability.  The countervailing interest is the need to keep the roadways safe and have to rigorous laws that discourage and combat drunk driving. Using the same balance, the Court found blood tests to be wholly different. 

            Blood test necessarily require the piecing of the suspect's skin, something that causes discomfort for many.  A tangible portion of internal tissue (albeit liquid) is removed from the body.  That blood can then be kept by the government and used in later prosecutions.  One example might be that presence of illegal controlled substances in a defendant's blood stream could be used as evidence in a subsequent prosecution. 

            These distinctions between the intrusiveness of blood and breath tests and durability of the resulting evidence led to the Court's holding that simultaneously upholds warrantless breath tests while ending the same practice for breath tests where the compliance is enforced by a criminal penalty.

            Justice Alito writes:

"Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.  As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation."

            That there may be an exigency insofar as the constant metabolic dissipation of alcohol in the human system (a position urged by Justice Thomas) was of no merit to the Court, and this opinion declined to extend the exigency exception to these situations. 

"Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.” 

            To fully understand the holding, it is necessary to understand the laws of the two states involved.  North Dakota's law (§ 39-08-01) makes a first refusal a Class B misdemeanor, which is punishable up to thirty days in jail and/or a fine of $1500. Minnesota law, (169A.20, subd.12) makes conviction for a first refusal a criminal offense punishable by a range of incarceration and fines. 

            The Commonwealth's "refusal law" found in §18.2-268.3 sets up a tiered punishment rubric based on prior offenses.  Refusal is dependent on implied consent (as found in §18.2-268.2).  Implied consent is based on the statutory imperative that any individual who operates a motor vehicle on the highways of the Commonwealth has consented impliedly to having their blood or breath tested for the presence of alcohol in exchange for being able to use those highways.

            A "first offense" (meaning that a person has not had a previous conviction under the refusalstatute or a previous DUI conviction), is deemed by the statute to be a civil violation only and the singular possible punishment is the loss of one's operator's license or the privilege to operate a motor vehicle.  Enhancing the punishment is the unavailability of a restricted operator's license for the twelve months of suspension.  Thus, someone convicted of a first offense refusal is wholly unable to lawfully operate a motor vehicle on Virginia's roadways for 12 months.

            The second conviction for a refusal in the Commonwealth is no longer a civil matter.  Instead, a second or subsequent conviction (meaning a prior conviction for refusal or for DUI) within 10 years of the instant charge's offense date is punishable as a Class 2 misdemeanor (up to 6 months in jail and/or a fine of up to $1000) and an operator's license suspension for 3 years.

            A third or subsequent offense (for either refusals or DUIs) is punishable as a Class 1 misdemeanor (up to 6 months in jail and/or a fine of up to $2500 and an operator's license suspension for 3 years).

            To what degree is the Court's holding driven by criminal penalty of the refusal laws? Justice Alito writes "...[w]e conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." The opinion draws a distinction between implied consent laws that have civil penalties for refusal and those that result in criminal punishment:

"Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another to impose criminal penalties on refusal to submit."

            The Birchfield decision has been received with a great deal of interest by practitioners and law enforcement.  In the days that follow, practitioners, law enforcement and judges will be watching and reading similar cases as they progress through the judicial system throughout the country.

[1] 579 U.S. ____ (2016)

[2] 573 U.S. _____ (2014)