Is making drivers submit to a breath or blood test under the threat of criminal penalty a violation of their constitutional rights? As USA Today reports, that is the question that the Supreme Court of the United States mulled over last week in response to lawsuits filed by Minnesota and North Dakota drivers. In both states, law enforcement can charge misdemeanors for refusing BAC tests even when they do not have a warrant to search the suspected driver.
Thirteen different states now have criminal penalties associated with their implied consent laws. Washington, fortunately, isn't one of them, but the SCOTUS case under consideration now highlights the Fourth Amendment dilemma policing alleged drunk drivers so frequently presents.
The Justices' Arguments
The eight-justice SCOTUS bench presented a wide range of different takes on the implied consent issue. Several, like Justice Stephen Breyer, wondered if something as simple as submitting to a breathalyzer could really be considered a violation in the first place. "What is wrong with a Breathalyzer test when it can save lots of lives and is given to those people where there is probable cause," said Breyer. "Or at least reasonable suspicion to think they're drunk?"
Justice Samuel Alito also sided with the states. "The reason why people don't want to submit to a blood-alcohol test is that they don't want their blood alcohol measured," he argued. "It's not that they object so much to blowing into a straw."
Other justices were hesitant to dispense with the need for a warrant to conduct a search. "Do we dispense with a very important requirement in our law, that before you search — particularly the inside of a person with a needle or in an intrusive way — that you get a warrant?" Justice Sonia Sotomayor wondered.
Unclear Way Forward
As it stands, some states require that law enforcement to electronically receive a warrant during a traffic stop before they can compel a driver to submit to a breath or blood test. Deputy solicitor general Ian Gershengorn noted, however, that judges and magistrates are not available 24/7 to be reviewing cases and issuing warrants.
For now, the matter will remain under consideration, but until then, countless drivers may have to bear what could ultimately be ruled an infringement of their rights. As Justice Anthony Kennedy described it: "You're asking for an extraordinary exception here. You're asking for us to make it a crime to exercise what many people think of as a constitutional right."
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