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  • Maria Thompson

Privacy in the Time of Birchfield

Updated: Oct 18, 2023

In the Supreme Court’s June 2016 decision in Birchfield v. North Dakota, the Court held that police officers do not need a warrant to issue a driver suspected of driving under the influence a breath test as a search incident to arrest. Birchfield involved multiple petitioners arguing that their Fourth Amendment rights were violated as result of their states’ implied consent laws.

Under North Dakota law, a police officer who pulls over a motorist for suspicion of driving under the influence of alcohol can issue a preliminary blood alcohol content (BAC) test to determine whether further testing is necessary. The preliminary test is in the form of a breath test and is used to determine whether a more advanced test is necessary. If the driver refuses this test, the penalty is the same as if he were arrested and refused a chemical test. The preliminary test that Birchfield took showed an amount three times that of the legal limit, so the officer arrested him and advised of his obligation under state implied consent laws that he must submit to a BAC test. Birchfield refused. The officer then arrested and charged him with test refusal, a misdemeanor. The North Dakota State District Court rejected his argument that the search violated his Constitutional rights and sentenced him to one year of prison and $1,740 in fines and fees. The Supreme Court granted certiorari for two cases – one from North Dakota and one from Minnesota – consolidating them into one for review. The question at issue is whether a driver can be penalized for refusing a blood alcohol test after being lawfully arrested for drunk driving.

Defendants argue that North Dakota’s implied consent laws violate their Fourth Amendment rights because they compel consent and thus do not fall within the warrant exception. Further, they claim the drivers do not understand that they have consented to this search and that the State cannot criminalize the exercise of a Constitutional right. The States maintain, however, that implied consent laws are valid and constitutional. North Dakota and Minnesota argue that the searches incident to arrest do not need a warrant because they satisfy the Fourth Amendment’s reasonableness requirement. They also claim that implied consent laws advance a compelling state interest of public safety. Citing the legitimate state interest of deterring motorists from driving under the influence, the majority held that warrantless breath tests fall within the search-incident-to-arrest exception and are thus constitutional.

All fifty states have imposed implied consent laws. Virginia is one of thirteen states which have laws criminalizing a refusal to consent to a test to measure the driver’s BAC. If the driver refuses, he is allowed one hearing in which the court determines whether the refusal was reasonable. If the court finds the refusal to be unreasonable, the driver’s license is revoked for one year. The first time is considered an administrative reprimand, but the second and third times are considered criminal offenses which result in a three-year license revocation.

Regarding citizens’ privacy rights under the Fourth Amendment, the Court is moving away from protecting an individual’s liberty and more toward upholding the state’s interest of “public safety.” In another recent Supreme Court case decided shortly before Birchfield, Utah v. Strieff, the Court held that evidence obtained after an illegal stop is admissible if there is no flagrant police misconduct and an outstanding, valid warrant for the suspect is pre-existing in the records system. This ruling further expands the law enforcement discretion and allows evidence obtained by unconstitutional means into the courtroom. Since 1914, the rule has stood that evidence obtained through a violation of the Fourth Amendment is inadmissible in court. Per the decisions in Strieff and Birchfield, this rule is changing as the Court has widened the scope for evidentiary

admissibility as result of unconstitutional conduct by police. In Strieff, the Court ruled 5-3 in favor of admitting evidence obtained by an unconstitutional stop. Then, in Birchfield, the Court voted 7-1 to uphold warrantless breath tests as searches incident to arrest. This mounting judicial approval for implied consent laws could open the door to more states enacting legislation to criminalize refusal of BAC tests. As a potential result, drivers will need to become aware of their implied consent when driving on public roads and realize that the results of their tests will most likely wind up in court.

While the current momentum of SCOTUS rulings is on the side of the prosecution, defense counsel have public support behind them from growing concern to protect privacy rights. Those opposing this expansion of governmental power include civil liberties groups, such as the American Civil Liberties Union (ACLU), who cite ongoing abuses of power by law enforcement, claiming that police officers are targeting certain racial groups and profiling drivers when they patrol. The ACLU cites a report by Washington Monthly finding that African American drivers are five times more likely to be pulled over than Caucasian drivers. Concerned citizens also worry that the growing number of Court decisions in favor of police discretion could totally eliminate the protections of the Constitution against unreasonable searches and seizures. The most audible voice of these citizens is that of Justice Sotomayor, who articulated skepticism in her dissenting opinion in Birchfield: “I fear that if the court continues down this road, the Fourth Amendment's warrant requirement will become nothing more than a suggestion."


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