Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.
The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.
Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.
The flaw in these laws is they punish individuals for asserting Constitutional rights. To protect expectations of privacy, individuals have the right to be free from, and therefore refuse, unreasonable searches. A search is unreasonable unless it is authorized by a warrant or a recognized exception to the warrant requirement. One recognized exception is consent, and the government claims drivers consent to breath/blood/urine tests. However, for consent to justify a search, the consent must be given voluntarily. Consent is not given voluntarily if it is coerced by punishment for not consenting. That’s what these laws do: punish individuals for not consenting to a search of their bodily fluids.
Individuals’ expectation of privacy in bodily fluids should have been a significant topic in the oral arguments before the U.S. Supreme Court. According to the report by scotusblog.com, it sounds like the justices and attorneys glossed over this point. More than one justice reportedly commented that a breath test is a fairly unintrusive search; certainly less intrusive than a blood test.
These comments miss the point. While the intrusive nature of the search is objectionable, what’s more significant is the private nature of the evidence seized. A person’s expectation of privacy in her bodily fluids is reasonable: think of all the private information contained in one’s blood, breath and urine. To obtain that private information, the government needs a search warrant. If the government does not have a warrant, the person can refuse to consent to the search, and that refusal should not be criminalized.
The United States Supreme Court, currently at eight justices, will render a decision in these cases in the next few months. In the meantime, I will continue to contest this issue in Ohio courts. Although the Ohio Supreme Court upheld Ohio’s criminal refusal law in State v. Hoover, I have been arguing for that case to be revisited in Ohio. It appears the ‘revisiting’ will take place after the U.S. Supreme Court releases a decision in Birchfield/Bernard/Beylund.