It was indeed a rare occasion. Seven out of the eight U.S. Supreme Court justices agreed on June 23, 2016 on the same legal conclusion. That’s truly rarefied air.


The issue involved was whether States can impose criminal penalties on suspected DWI drivers who refuse to submit to blood draws. Twelve states have criminalized such refusals in varying degrees. They saw those laws crumble under the weight of the Fourth Amendment.


But the day was not a total loss for the States. The Court held that a search warrant is not required in order for the police to conduct breath tests on suspected DWI drivers.


Distinguishing Blood Draws and Breath Tests


The Court essentially distinguished the two evidence gathering methods by saying the impact of a breath test on individual privacy guaranteed by the Fourth Amendment is slight while the impact of a blood draw is great. A blood draw, the Court concluded, is far more intrusive and the States offered no “satisfactory justification” for conducting such a warrantless evidence gathering method.


A breath test, on the other, was found to serve legitimate law enforcement interests and, therefore, could be administered without a warrant as an incident to a lawful arrest.


Limit to Consequences for Refusals


While the Court was sympathetic to the States’ need to combat drunk driving by imposing civil penalties, such as driver’s license suspensions, on those who refuse DWI testing, the justices concluded there must be a “limit to the consequences” States can impose on suspected DWI drivers who refuse to allow the police to invade their bodies.


Thousands of people die each year on the nation’s public roads because someone decides to drink and drive while intoxicated, either by alcohol or drugs. All fifty states have enacted what is known as “implied consent” laws; namely, that by securing a driver’s license necessary to drive on public roads, a driver has consented to testing if he or she is suspected of driving under the influence of alcohol.


While the Court has held in previous cases that such implied consent testing is a search within the meaning of the Fourth Amendment’s warrant requirement, this requirement is not violated if it falls into one of recognized exceptions to the requirement. For example, such as the police seizing contraband from a lawfully stopped vehicle that is in plain sight.


The problem faced by the Court in DWI cases, as stressed in arguments supporting the States, is that standard alcohol breath testing is limited, i.e., it reflects only the concentration of alcohol in an individual’s breath. This evidence gathering method is frequently flawed. A blood test is much more reliable, attorneys for the States argued.


Blood Draw is Invasive


But it is also far more intrusive than a breath test, requiring a medical technician to prick the skin, insert a needle, and withdraw blood. In fact, the Court referred to this evidence gathering method as “invasive.”


It was the core invasiveness of a blood draw that congealed a consensus among the justices that a warrant is required before such a test can be administered.


Except for Justice Thomas, the one justice who always seems to believe that the Constitution exist as the primary authority for the States to abuse individual liberties.


Thomas Would Allow Blood and Breath Without Warrant


Thomas parted ways with the justices on the warrant requirement for blood draws. He saw no difference between a breath test and a blood draw, finding that a warrant was not needed to perform either test so long as the police officer believes a driver is intoxicated.


The end result of the Court’s ruling is that the police will now embrace the legal authority to conduct warrantless breath tests by insisting that all motorists they suspect of being intoxicated undergo the tests.


That, we feel, is too much police power and will not meaningfully serve the government’s interests of reducing drunk driving fatalities. It will serve only the interests of the police to exercise their authority in a discriminate manner. That’s why Justices Sotomayor and Ginsburg said a warrant should be required for both blood and breath testing in order to place a constitutional check on police power.


We suspect that because of the Court’s ruling, some States will now rush to criminalize breath test refusals because such testing no longer enjoys any real Fourth Amendment protection. That means a motorist who sloppily makes a lane change and refuses to give a breath test to an officer who does not like the motorist’s attitude could be criminally prosecuted, in addition to common sanction of license suspension.


That is simply too much police power to suit us.