In a June 23, 2016 decision, the United States Supreme Court acted by a five to three vote to uphold warrantless BAC breath testing of persons lawfully arrested for DUI, and both civil and criminal penalties for refusal of a breath test. The Court, however, declined to place warrantless blood tests within the scope of searches approved as being incidental to arrest, and thus disapproved criminal penalties for refusal of a blood test.  Birchfield v. North Dakota, 2016 U.S. Lexis 4058.


The Court was reviewing three separate DUI cases; one from Minnesota and two from North Dakota.

In the Minnesota case, the DUI arrestee was ordered to take a breath test and he refused.  He was convicted of the misdemeanor under Minnesota law of refusing a chemical test.

In the first of the two North Dakota cases, the DUI arrestee was ordered to take a blood test and refused.  He was similarly convicted of the offense of refusing a chemical test for BAC.

In the second of the North Dakota cases, the DUI arrestee was ordered to take a blood test and consented after being warned that under North Dakota law a refusal would constitute a separately prosecutable crime.  He consented to the test, later entered a conditional guilty plea to the misdemeanor of refusing a test, preserving his right on appeal to argue that his consent was not voluntarily given.

All three of these DUI arrests were without associated injury and so would have been a misdemeanor under California law.

Breath Tests

Relying on the historical principal of search incident to a lawful arrest, and noting that this principal predates the founding of our nation, the Court held that a breath test is permissible as a search incident to arrest.

In reaching this conclusion, the Court noted that breath testing is minimally intrusive, involving little more than normal respiratory functions of inhalation and exhalation essential to life, together with the act of utilizing a mouthpiece that the Court found to be akin to the socially unobjectionable act of drinking from a straw.

As to privacy interests, the Court noted that an arrestee holds no reasonable expectation of privacy in the air one inhales, holds briefly within the lungs, and then exhales.

Thus, as a search incident to arrest, the process of a breath test is permissible, and both administrative and criminal penalties may flow from a refusal to take such an ordered test.

Under this reasoning, the Minnesota DUI defendant’s conviction was upheld because his refusal was of a breath test.

Blood Tests

However, contrasting blood tests with breath tests, the Court noted that while breathing is a life sustaining function, inhaling and exhaling air, people do not usually go about shedding blood the way we breathe air.

Furthermore, the process of obtaining a blood sample intrudes unnaturally upon the body by the piercing of a blood vessel.

The Court further noted that there is a reasonable expectation of privacy from government intrusion into the contents of one’s bodily fluids such as blood.  In this same vein, and while not appearing to be central to the Court’s analysis, comment was made in the opinion about the fact that a breath sample is tested, but not retained.  Thus, there is no potential compromise of further biological data being obtained through this governmental intrusion.  The same, the Court noted, could not be said of a blood sample, which could be retained and yield additional information long after it was initially obtained.

On this reasoning, the Court declined to place an ordered blood test within the permissible scope of a search incidental to arrest; and, accordingly disapproved imposition of criminal penalties for such a refusal.  The Court specifically stated that its opinion should not be read to cast any doubt on the constitutionality of implied-consent laws that impose civil or evidentiary penalties on those who refuse to provide either breath or blood samples as required pursuant to state law.

The treatment by the Court of blood tests for DUI arrests pertained to the two North Dakota defendants.  Both were prosecuted on the basis of a blood test.  The one defendant refused a test, while the other took the test and pled guilty, but reserved the issue of consent for treatment on appeal.

As to the defendant who refused the blood test, the Court found that he could not be prosecuted for this warrantless search as it was not within the scope of a search incident to arrest or other exception to the warrant requirement.

As to the Defendant who took the test but argued his consent was not freely given, the Court remanded the case to the North Dakota Supreme Court to reconsider the issue of whether the consent was voluntary under the totality of the circumstances in light of the Court’s decision.

Exigent Circumstances and Blood Tests

The Court did observe that it was not stating a “per se” rule that blood tests will always require a warrant.  Rather, it left as an exception to the warrant requirement those instances where an exigency may weigh in favor of a blood test without a search warrant.

In this regard, the Court noted its prior holding in Schmerber v. California that that drunk driving may present such an exigency.  See 384 U. S., at 758.  In that case, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries.  The Court concluded in Schmerber that the officer “might reasonably have believed that he was confronted with an emergency” that left no time to seek a warrant because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops.”

Similarly, the Court acknowledged that a breath test is likely insufficient where there is evidence that intoxication is from a substance not detected on the breath.  For instance, officers might be presented with an obviously impaired and intoxicated arrestee who shows little or no BAC upon testing of the breath.

The Court simply observed that if the apparent investigative course favored a blood test, officers would either require a warrant or must be able to articulate exigent circumstances which excused the need for a warrant.

Majority Rejection of Dissent

The Court majority noted, but rejected, the reasoning in the dissent by Justice Sotomayor.

Together with the Petitioners, Justice Sotomayor had argued that the mere fact of arrest served to remove that driver from the road at that time, and thus achieved the governmental interest of removing DUIs from the road.  The majority observed that the governmental interest was in deterring drunk driving and not simply relying on catching those who do so.

Justice Sotomayor also posited the view that it was not an undue burden on police to require a search warrant even for breath tests.  The majority, however, pointed out that in the cases regarding North Dakota, the bench officers authorized to approve search warrants are spread so thin – indeed, are totally absent in six counties – that it would impose an unreasonable burden on both officers and on judicial resources to require a warrant in support of the thousands of DUI arrests each year just in that state.  The majority further stated that, even if there were enough judges to handle this volume, they would be doing little more than reviewing and approving warrants all the time.


Under this holding, a warrantless breath test is permissible as a search incident to the arrest of a DUI arrestee. However, a blood test is not a permissible search incident to arrest.  Accordingly, a warrant, or an exception to the warrant requirement, is required for a blood test of a DUI arrestee.

Therefore, officers should be instructed on the processes for obtaining a warrant for blood tests, particularly outside normal business hours; or, should ensure that any exigent circumstances beyond their control are set forth in appropriate detail in related reports of the arrest.

California does not criminalize the failure to submit to either a breath or a blood test. However, as noted by the Court, the imposition of civil and evidentiary sanctions for refusal to do so pursuant to implied-consent laws are constitutional and are not altered by this decision.

As always, if you would like to discuss the ruling in Birchfield v. Dakota further, please do not hesitate to contact either Paul R. Coble or  James R. Touchstone at (714) 446-1400 or, respectively, at prc@jones-mayer.com orjrt@jones-mayer.com.

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