According to the National Highway Traffic Safety Administration (“NHTSA”), 10,874 people died in drunk driving related vehicle crashes in the United States in 2017—that’s roughly 30 deaths a day and one every 48 minutes. Mothers Against Drunk Driving (MADD) report these deaths occur as a result of the 300,000 incidents of people drinking and driving each day. These alcohol-related crashes lead to costs roughly $44 billion each year.

 

All states have a BAC (blood alcohol content) level beyond which motorists are prohibited from getting behind the wheel of a vehicle and driving. With one exception (Utah), all states and the District of Columbia have a 0.08 percent BAC legal limit—any measurement above that legal limit is considered alcohol-impaired.

 

Generally when the police stop a vehicle driven by a motorist suspected of being alcohol-impaired, they have reasonable suspicion to make the stop because of one or more of the following factors:

 

  • Motorist was driving slower than the speed limit or other motorists;
  • Erratic driving, such as straddling the center line or drifting between lanes;
  • Near misses of other vehicles or objects close to the road;
  • Illegal turns or failure to obey traffic signals; and/or
  • Braking frequently or stopping in the middle of the road for no apparent reason.

 

Once the vehicle is stopped and after the police officer has observed the motorist for signs of alcohol-impairment, they will ask the motorist to undergo a Field Sobriety Test (“FST”). Refusal to take the test is not per se probable cause to arrest, but given the officer’s reasonable suspicion to initiate the stop and any observations of alcohol-impairment (e.g., slurred speech combined with smell of alcohol) made immediately after the stop, the officer will attempt to develop sufficient probable cause to either detain or arrest the motorist.

 

Every state has passed what are known as “implied consent laws”—namely, that in exchange for having the privilege of driving on a public road, the operator of a motor vehicle is required to submit to BAC testing when there is sufficient reason to believe the operator has violated a given state’s drunk-driving laws. These chemical tests include breath and blood testing as well as urine testing.  Refusal to consent to testing can result in loss of diving privileges for a period of time.

 

Law enforcement authorities utilize these tests to measure a motorist’s BAC level. Each test, in varying legal degrees, is an invasion of personal privacy and therefore implicate the Fourth Amendment’s prohibition against warrantless body searches. The Supreme Court has addressed what the police may do when confronted with a suspected alcohol-impaired motorist who has been placed under arrest:

 

“First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.”

 

After having been given the standard Miranda warnings, an arrested motorist may refuse to undergo chemical testing. Depending upon the state, there are civil penalties and what the Supreme Court calls “evidentiary consequences” (using their refusal against them in court) for the motorist who refuses to comply with a request for chemical testing.

 

In 2016, the Supreme Court took up three DWI cases from two states—North Dakota and Minnesota—in which the defendants had been subjected to criminal penalties for refusing to undergo warrantless breath and blood tests. The two blood draw refusals were from North Dakota involving one defendant who was given a 30-day sentence and a fine and the other defendant lost his drivers’ license. The Minnesota defendant, who refused a breath test, was subjected to a criminal conviction.

 

Breath vs. Blood Draw

 

In Birchfield v. North Dakota, the Supreme Court concluded that the degree of personal privacy involved in breath and blood draw testing are markedly different under the Fourth Amendment.

 

The Court explained:

 

“Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

 

“Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

 

“In instances where blood tests might be preferable – e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious – nothing prevents the police from seeking a warrant or from relying o n the exigent circumstances exception is it applies.

 

“Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.”

 

Warrantless Blood Draw on Unconscious Person

 

In a June 21, 2019 decision, Mitchell v. Wisconsin, the Supreme Court upheld the broad parameters of Birchfield’s rule concerning warrantless blood draws on an unconscious defendant to determine their BAC level.

 

The defendant in Mitchell argued that the approval of warrantless blood draws on unconscious DWI suspects approved by Birchfield is outdated because today’s technology of rapid communication allows for faster ways of securing a search warrant. The Court rejected the notion that rapid communication technology overcomes the emergency involved in alcohol dissipation in unconscious subjects.

 

The Court thus concluded:

 

“When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.”

 

The bar for satisfying the test that a suspect’s “blood would not have been drawn” will most assuredly be a difficult one to overcome, but the defendant should be given opportunity to conduct hearing and demand police follow Constitutionally mandated procedures.