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

DUI Refusal To Submit Breath Test

Refusal to Submit to a Breath Test

The US Supreme Court gave the OK to punish DUI defendants for breath test refusal. This allows Florida to give harsher penalties to defendants for their breath test refusals, even with no search warrant. The Court ruled DUI arrests Breath Tests are likely to happen. So, Breath Tests do NOT need a warrant.

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). This was a combining of three cases: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi.

History of Breath Testing

As far back as, 1905 the LA Times covered a felony manslaughter trial of B. Hook. Hook had been drinking whiskey with his friends and struck and killed a pedestrian. There was no reliable way to prove a driver’s drunkenness. Most roadside tests are subjective. The National Safety Council started a campaign in 1936.

If you drink, don’t drive.”

So after prohibition, police used the new Widmark Formula to determine blood alcohol concentration (BAC). The equation was innovative. The method used was difficult, messy and had unreliable results.

Widmark Formula
Widmark Formula

Later, in 1936, biochemist and toxicologist Harger patented the “Drunkometer.” The driver would blow into a small balloon. The officer would put the captured air into the Drunkometer. Alcohol produced a color change. The officer could measure and calculate the BAC. The results were reliable and accepted by the courts. Then Borkenstein patented the smaller and easier “Breathalyzer” in 1954.

Over time, improved Breath Test machines continue to improve. Today, devices detect alcohol more quickly and accurately than before. Some use infrared technology rather than a chemical reaction. The National Highway Traffic Safety Administration approves all breath testing machines used in courts. Federal Standards require the devices be accurate and reproducible at a variety of BAC levels.

20 Percent of Drivers Refuse a Breath Test

On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. Source: 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. 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. He refused. The officers told Bernard he had to comply. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. The state prosecuted Birchfield for refusing a warrant-less blood draw. Bernard and Birchfield each refused to undergo a test. Each was convicted of a crime for his refusal. But Bernard refused a Breath Test and Birchfield refused a blood test. Beylund agreed to a blood test after police told him that the law requires it.

Success for all three depends on the idea that the law does not make someone submit to testing without a warrant. If warrant-less searches agree with the Fourth Amendment, then States may make laws demanding someone to submit to these tests.

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.” – Amendment IV

Search Incident to Arrest

In the three cases, the officers arrested the drivers for drunk driving. Next, they searched the drivers. Then the officers told the drivers the law required the search. The Court reflected on using the search-incident-to-arrest with breath and blood tests.

  • First, breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.”
  • Second, breath tests are only reveal one bit of information, the amount of alcohol in the subject’s breath.
  • Finally, taking a breath test does not increase embarrassment of the arrest.

If every arrest required a search warrant, search warrants would inundate the courts.

Fourth Amendment Permits Warrant-less 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 warrant-less breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.” – Birchfield v. North Dakota, 136 S. Ct. 2160 – Supreme Court 2016

The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests.

The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests. First,the state did not prosecute Beylund for refusing a test. The state needs to re-evaluate that case. Second, Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed. Finally, since the state prosecuted Bernard for refusing a warrant-less breath test. That test did not conflict with Fourth Amendment, Bernard had no right to refuse it.

Complete Opinion: http://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf