Currently pending before the Supreme Court are consolidated cases from Minnesota and North Dakota—under the title of Birchfield v. North Dakota—that could significantly change the way states deal with suspected drunk drivers.


The question before the Court is this: Should North Dakota and Minnesota, or any other state, be allowed to attach a criminal penalty for a suspected drunk driver’s refusal to take a warrantless test of a person’s blood, breath or urine to detect the presence of alcohol?


Criminal Penalties for Refusal to Take DWI Breath Test


North Dakota makes it a misdemeanor offense for refusing to take an alcohol detection test—the level of the offense determined by the number of refusals over given periods of time. Four or more refusals during a 15-year period would become a Class C felony. The criminal penalties attached to these refusals include fines, imprisonment, addiction evaluation by a licensed addiction treatment center, and participation in the state’s 24/7 Sobriety Program.


Felony in Minnesota to Refuse


In Minnesota, it is a first-degree felony to refuse to take a breath test and carries a mandatory minimum sentence of three years in prison.


At least ten other states attach criminal penalties for refusing to take warrantless alcohol-detection tests: Alaska, Florida, Hawaii, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.


Texas DWI Law


Texas, like most every other state, is an “implied consent” state. In other words, the state, by extending the privilege to drive on its roads and highways through a valid driver’s license and a person’s acceptance of that license, creates implied consent for DWI blood or breath tests under certain circumstances. For example, implied consent to submit to either blood or breath test for the presence of alcohol test exists when a police officer arrests an individual for operating a motor vehicle based upon probable cause that the suspects is intoxicated.  Under these circumstances an officer may request the test of the operator’s blood or breath to determine if his or her blood alcohol content is beyond the legal limit.  Should the subject refuse, their driver’s license can be suspended for a specified period of time.


Civil Penalties, Suspension of License for Refusal


Article 724.035 of the Texas Transportation imposes the following penalties for refusing to take a DWI chemical test: first offense is a 180-day license suspension; second offense is a two-year license suspension; and a third offense is a two-year license suspension.


Notice must be given. Upon arrest, a Texas police officer must provide the suspected DWI driver with a written notice that his or her refusal can be used in court against them and that their license will be suspended for 180 days. If the driver refuses to take the test, he or she must sign a statement that they were warned of the consequences of refusal.


What will the Court do in the North Dakota and Minnesota cases?


Supreme Court Unclear About Resolution


Legal scholars and media outlets who either attended or read excerpts from oral arguments said the justices at the outset appeared receptive to the criminal penalty sanctions, but as the arguments progressed, they became more reticent and expressed skepticism about warrantless chemical testing.


In a May 5, 2016 piece, Justia columnist and Cornell University law professor Sherry F. Colb had this to say about what the Court may do:


“I must acknowledge, before venturing a prediction, that the Court could decide the case in a number of ways that would surprise me. First, it might hold that even when a warrant is required to perform an alcohol test (whether blood, breath, or urine), a state may still criminally punish a refusal to consent to such a test. In so ruling, it might say that even though a person has a constitutional right, he does not necessarily get to enjoy that right free of any costs (including criminal costs). Or the Court might say that driving on the roads impliedly consents to alcohol tests on suspicion of DUI (subject to criminal penalties) or that a state may condition use of its roads by drivers on submission to such tests (on pain of criminal penalties). It may, alternatively, hold that unlike a blood draw, a breathalyzer test is sufficiently unintrusive that it may be performed without a warrant (and that a state may therefore criminally penalize failure to submit to it, even absent a warrant).


“My prediction, however, is that the Court will take the opportunity of this case to announce that any test of a person’s internal state, whether through a blood draw, a breathalyzer, or a urine sample, requires a search warrant in the absence of exigent circumstances. All three forms of alcohol tests are conceded to be ‘searches,’ and searches—especially searches of a person’s internal state—generally require a warrant. The Court seems wary of announcing new warrant exceptions without a good reason, and the facts of this case do not seem to strongly suggest a basis for a new exception. The Court will also, I believe, tell us that so long as a person has a Fourth Amendment right not to be searched, it follows that the person may not be criminally punished for asserting that right not to be searched, even if noncriminal costs—such as license revocation or the use of the refusal in evidence—may be imposed for the exercise of rights. And although I initially thought the Court might have been wrong to require a warrant for a blood draw in DUI cases, I am convinced that absent a revisiting of McNeely, the Court would be right to protect against even breathalyzer tests with a warrant requirement that does not admit of elimination through a coercive consent condition. In truly exigent circumstances, of course, police will be able to skip the warrant step, but otherwise, I predict and would suggest, blood alcohol content tests may not be performed, nor may a refusal to consent to them be criminally punished, consistent with the Fourth Amendment right against unreasonable searches and seizures.”


We tend to agree with Professor Colb.


Blood Test Without Warrant Requires Exigent Circumstances Other Than Dissipation of Alcohol


In April 2013, the Court in McNeely V. Missouri held that the dissipation of blood alcohol alone was not a sufficient exigency exception to the warrant requirement.


In the wake of the McNeely decision, the Texas Court of Criminal Appeals in November 2014 in State v. Villarreal held that “the warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment warrant requirement, nor can it be justified under a general Fourth Amendment balancing test.”


It should be noted that if the Supreme Court follows its own lead in McNeely and rules out criminal penalties for DWI chemical testing refusals in North Dakota and Minnesota, then the civil penalties (license revocation) imposed for refusal to take a chemical test, like those in Texas, will remain in place.