Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws. A previous article in this blog gives a preview of the cases. To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests. Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases. The Court’s decision will impact Ohio DUI/OVI cases.
After considering 13 cases involving criminal refusal laws, the Court chose these three cases: Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota. These three cases were apparently chosen because they have three varying scenarios. Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test. Bernard challenged his conviction for refusing a breath test. Birchfield argued his conviction for refusing a blood test was unconstitutional. The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.
The Birchfield opinion analyzes the Fourth Amendment issues. The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment. Fourth Amendment law presumes a warrantless search is unreasonable. Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.
The opinion focuses on the search warrant exception for searches incident to a lawful arrest. Under that exception, if an officer arrests a suspect, the officer may search the suspect’s person and the area within the suspect’s immediate control. Using the test from Riley v. California, the Court determines the applicability of the exception by weighing the intrusion on privacy interest against the need for the tests to promote legitimate government interests.
With regard to breath tests, the Court concludes the intrusion on privacy interests is insignificant. The opinion notes there is no real physical intrusion, there is minimal inconvenience, and the only information obtained from the test is the person’s blood alcohol concentration (BAC). On the other hand, the government has a legitimate government interest in preserving highway safety, and the need for breath tests to promote this interest is great.
With regard to blood tests, the Court concludes there is a greater intrusion on privacy interests. The opinion observes there is physical intrusion under the skin, part of the person’s body is extracted, and there is more information than just the person’s BAC in a blood sample. Although the government has a legitimate interest in enforcing drunk driving laws, the need for blood tests is not great because breath tests can be used.
The Court reaches different conclusions for breath tests and blood tests. For breath tests, the intrusion on privacy is outweighed by the government’s need for breath testing, so search warrants are not required for breath testing. Accordingly, drivers may be criminally punished for refusing a breath test. For blood tests, the government’s need for blood testing is outweighed by the intrusion on privacy, so search warrants are required for blood testing. Accordingly, drivers may not be criminally punished for refusing a blood test.
The Birchfield opinion will impact Ohio DUI/OVI law. Currently, Ohio Revised Code section 4511.19(A)(2) makes it a crime to refuse a breath/blood/urine test if a driver is under the influence and has a prior conviction within 20 years. The Ohio General Assembly may now seek to dispense with the prior conviction requirement and simply criminalize breath test refusals.
The revised law could not criminalize blood test refusals, and it is questionable whether it could criminalize refusals of urine tests. Urine tests were not addressed in the Birchfield opinion. Most states do not use urine testing, so this issue will be litigated in Ohio. I intend to be involved in that litigation.