dui refusal, REFUSAL TO SUBMIT TO TESTING

Florida and Other States Can Punish Refusal to Submit to a Breath Test

The US Supreme Court today gave to OK for states including Florida to punish DUI defendants for refusing to take a breath test, even though there was no search warrant obtained.

Refusal to Submit to a Breath Test

Refusal to Submit to a Breath Test

The US Supreme Court today gave the OK for states including Florida to punish DUI defendants for refusing to take a breath test, even though there was no search warrant obtained. Court ruled they were searches incident to an arrest and no warrant was required. 

Three Reasons Court Used to Justify Punishment of a DUI Refusal

Here is why the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.
“First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.””
“Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”
“Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”
The case is Birchfield V. North Dakota No. 14–1468. ( June 23, 2016).
Here are Case Excerpts from the Court’s DUI Opinion

History of Breath Testing

The most common and economical method of calculating BACis by means of a machine that measures the amount of alcohol in a person’s breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Refusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the “Drunkometer,” was invented and first sold in the 1930’s. Note, 30 N. C. L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject’s breath alcohol concentration and by extension, BAC, from this figure. Id., at 303–304. A more practical machine, called the “Breathalyzer,” came into common use beginning in the 1950’s, relying on the same basic scientific principles. 3 Erwin §22.01, at 22–3; Jones 34.
Over time, improved breath test machines were developed. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin §18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Administration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver §7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAClevels, from the very low to the very high. 77 Fed. Reg. 35747 (2012); 2 Erwin §18.07; Jones 38; see also Californiav. Trombetta, 467 U. S.479, 489 (1984).

20 Percent of Drivers Refuse a Breath Test

On average, over one-fifth of all drivers asked to submit to BACtesting in 2011 refused to do so. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 2014).
To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing.
The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. NHTSA, Refusal of Intoxication Testing, at 20.
Back at the police station, officers read Bernard Minnesota’s implied consent advisory, which like North Dakota’s informs motorists that it is a crime under state law to refuse to submit to a legally required BAC test.

Punishment for Refusing Breath Test

The officers asked Bernard to take a breath test. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions.
petitioner Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal.
Despite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.
The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Search Incident to Arrest

In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.
First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.”
Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.
Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.
If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped.

Fourth Amendment Permits Warrantless Breath Tests Incident to Arrests for DUI

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BACtesting is great.
Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation
Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not contested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.