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Judge Mary Celeste (Ret.) | Denver, CO Facebook Twitter LinkedIn 2016 Best Legal Blog Nominee
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UPDATE: The Minnesota Supreme Court followed suit with the Birchfield case and addressed the express consent law that subjected a driver to criminal charges because they refused a blood, urine or breath test. The Court, as in Birschfield, found that type law constitutional in State v. Thompson and State v. Trahan . It determined that it was still a crime to refuse to submit to a breath test because breath tests do not place an unreasonable burden on the motorist and said tests are not intrusive; however, blood and urine tests were different. The issue in the case was… Is a urine test as invasive as a blood draw?  The Court stated “…a urine test is more similar to a breath test than a blood test…but the fact urine can provide more information than simply the level of alcohol in the body makes the urine test more like the blood tests. See Minnesota v. Thompson https://mn.gov/law-library-stat/archive/ctappub/2015/opa150076-122815.pdf


The United States Supreme Court in Birchfield v. North Dakota (decided June 23, 2016 Nos. 14-1468, 14-1470, 14-1507) addressed 3 consolidated cases from North Dakota and Minnesota challenging their respective implied consent statutes. Every state has implied consent statutes for drivers who are stopped for suspicion of impaired driving. These statutes typical mandate that the driver consent to a blood, urine or breath test and if they refuse they could face a variety of consequences that range from higher penalties, suspension of driving privileges and even a separate criminal action. The North Dakota statute mandated a blood test while the Minnesota statute, like many States’ implied consent laws, “specifically prescribe that breath tests be administered …instead of blood tests or give motorists a measure of choice over which test to take.” (See 1 Erwin §4.06; Minn. Stat. §169A.51, subd. 3).


Thirteen states criminalize a driver’s refusal to submit to a warrantless chemical test of his or her blood, breath, or urine to detect the presence of alcohol in order to deter drunk drivers (http://www.kcci.com/politics/supreme-court-oks-warrantless-breathalyzer/40196574) The 2 North Dakota petitioners were criminally penalized for refusing to take a blood test and the Minnesota petitioner who consented to a blood draw had his license suspended in an administrative action.


The Court discussed a silique of facts about the magnitude of drunk driving; the rationale for implied consent laws; the history of breath alcohol testing technology; the Fourth Amendment; and, the “search incident to arrest doctrine” Citing the McNeeley case (No. 11–1425-Decided April 17, 2013) that determined that a warrant is needed to draw blood from a motorist short of some exigent circumstances, all three petitioners argued that a driver may not be compelled to submit to the taking of a blood sample or to a breath test without such warrant. This Court re-emphasized the dicta in McNeeley re-stating the long-established rule that a warrantless search may be conducted incident to a lawful arrest and noting that the McNeeley case did not pointedly address “any potential justification for warrantless testing of drunk-driving suspects except for the exception “at issue in th[e] case,” namely, the exception for exigent circumstances.” unlike the McKneeley approach, the Birchfield Court addressed the issue of how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.


The Court looked to Riley v. California, 573 U. S. ___ (2014) for guidance and distinguished privacy rights related to blood testing verses breath testing. The Court stated “{b}ecause 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,” Alito wrote. “As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.” (Birchfield v. North Dakota).The Court in essence overturned the criminal convictions of the North Dakota petitioners and upheld the administrative action against the Minnesota petitioner.


The Court concluded that a person has more of a Fourth Amendment privacy protection for blood tests incident to arrest than breath tests incident to arrest. That may address the alcohol aspect of ‘impaired driving but what about drug impaired driving? Although there is the development of oral fluid and breath roadside testing for drivers suspected of drugged driving, for now, blood or urine seem to be the best tests for drugs. Given the holding in this case new question arise concerning the privacy rights related to other types of drug testing. For example, is urine testing as intrusive as blood testing? Is oral fluid testing more intrusive than breath testing. Is the new technology for breath drug testing the least intrusive test?

As roadside technology develops, the Courts will inevitably have to grapple with all of

these questions.

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