Thoughts on Birchfield: search incident okay for breath, but not for blood

On a busy Thursday at the Supreme Court, the decisions on affirmative action and the President’s immigration executive order overshadowed an important Fourth Amendment case, Birchfield v. North Dakota (and a somewhat less important Armed Career Criminal Act case, Mathis v. United States).

In an effort to combat the national scourge of drunk driving, every state has implied consent laws that govern the refusal of a BAC test upon suspicion of drunk driving.  That is, when a person obtains a license and uses public thoroughfares, they are deemed by the state to have implicitly consented to having their BAC tested.  Many states impose civil or administrative penalties (e.g., license suspension) for refusing such a test.  Several states, though – including North Dakota and Minnesota – go further and make it a crime to refuse such a test after the person has been arrested for a drunk driving offense.

When a person is subjected to a lawful arrest, the police may search the arrestee’s person, any items or containers associated with the person, and anything within the arrestee’s grabbing area or wingspan.  See Chimel v. California; Robinson v. United States.  If a person is arrested upon a traffic stop or after being inside a car, police may then search the passenger compartment of the vehicle if the arrestee is left unsecured and the passenger compartment is within his literal grabbing area, or if there is reason to believe evidence relevant to the crime of arrest will be found inside.  See Arizona v. Gant.  But in Riley v. California, the Court held that the search incident doctrine does not extend to the contents of cell or smart phones, finding that a balancing of the privacy and governmental interests favored the requirement of a warrant.  Using a similar analysis, the Court this week held that the search incident doctrine permits a state to require a person – on pain of criminal penalty if he refuses – to take a breath test after being arrested for a drunk driving offense.  Breath tests, the Court repeated, “do not ‘implicate significant privacy concerns.'”  (quoting Skinner v. Railway Labor Executives’ Assn.).  But, the Court said, “[b]lood tests are a different matter.”  The Fourth Amendment does not allow the state to criminalize the refusal to take a blood test.  Blood tests are substantially more invasive than breath tests, and so the individual’s interests – like those in Riley – militate in favor of mandating a warrant for blood, absent some other legal justification.

The Court also examined whether the blood test refusal statute could survive based not on the search incident doctrine, but on the consent doctrine.  Consent to a search, when voluntary, makes the search per se reasonable under the Fourth Amendment.  The Court, however, held that the consent doctrine did not justify requiring consent to a warrantless blood test, at least where the refusal amounts to a crime.

This, I think, is an important point.  The Court did not consider the constitutionality of these implied consent laws generally.  That issue was not before the Court, and Justice Alito’s opinion stated that the Court had cited these laws approvingly in other cases (though those are cases that did not themselves consider the constitutionality of implied consent as a Fourth Amendment matter).  He further said that nothing in Birchfield should be read to cast doubt on these laws.  Rather, Justice Alito was content to simply hold, more narrowly, that a criminal penalty for refusal went beyond what the Fourth Amendment would permit, saying simply that there must be “a limit” on the consequences to which a person consents when they drive on public roads.  Presumably, then, it is unreasonable to imply consent to a blood test and to criminalize refusal to do so merely because the person uses public roads.

But the Court’s holding on this point was terse and lacked much explanation.  Is this the only “limit”?  Why would implied consent to a blood test be invalid when there is a criminal penalty, but the very same conduct constituting implied consent would be valid consent when the State simply takes away one’s license?  In other words, what – for purposes of interpreting the Fourth Amendment – is the difference between criminal penalties and civil or administrative penalties when it comes to refusing consent to a blood test?  I wonder whether these implied consent laws with non-criminal consequences are ripe for a Fourth Amendment challenge at the Court, notwithstanding Birchfield’s observation that nothing in the case “should be read” as making implied consent laws constitutionally dubious.

Which brings me to another takeaway from Birchfield.  For those wondering about the scope of the case, remember that it applies only in the context of a search incident, i.e., where there is an arrest.  If a driver is pulled over and subjected to a BAC test before being arrested, Birchfield does not govern.  It is in these situations that the state would have to rely upon either consent doctrine or exigency to justify the demand for a test.  We know from Missouri v. McNeely that the natural metabolization of alcohol in the blood does not amount to a categorical exigency, but rather must be judged case-by-case.  And if the exigency could not be established, that would leave consent as the basis for a warrantless search, which brings me back to my previous point about whether treating this as implied consent is constitutionally valid under the Fourth Amendment.

For readers interested in federal criminal law specifically, the Court will likely issue its decisions in McDonnell and Voisine on Monday.  We also expect to see the Court’s ruling in Whole Women’s Health, the Texas abortion restriction case.



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