New York Times

Justices Require Warrants to Test Blood but Not Breath

June 24, 2016

by Adam Liptak

WASHINGTON — The police must obtain warrants to test the blood of motorists arrested on suspicion of drunken driving, the Supreme Courtruled on Thursday, but no warrants are needed to conduct a breath test.

The case, Birchfield v. North Dakota, No. 14-1468, consolidated with two others, arose from laws that made it a crime for motorists suspected of drunken driving to refuse breath or blood tests.

The court’s split decision considered three cases: one from Minnesota and two from North Dakota.

Justice Samuel A. Alito Jr., in a part of the decision determined by a 7-to-1 vote, said laws effectively requiring blood tests violated the Fourth Amendment’s ban on unreasonable searches. In a part decided by a 6-to-2 vote, Justice Alito wrote that laws requiring breath tests are permissible.

“Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test,” he wrote.

When all that is sought is a suspect’s breath, he wrote, “the physical intrusion is almost negligible,” adding that “the effort is no more demanding than blowing up a party balloon.”

Moreover, he wrote, “breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”

But blood tests, Justice Alito wrote, “are a different matter,” requiring piercing of the skin and extraction of “a part of the subject’s body.”

“In addition,” he wrote, “a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond” what can be learned from a breath test.

In a partial dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, said warrants should be required for both kinds of tests.

“The court lacks even the pretense of attempting to situate breath searches within the narrow and weighty law enforcement needs that have historically justified the limited use of warrantless searches,” Justice Sotomayor wrote. “I fear that if the court continues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion.”

In a second partial dissent, Justice Clarence Thomas said he would not have required a warrant for either kind of search.

The Minnesota case involved William R. Bernard, who refused to take a breath test after his arrest on suspicion of driving while intoxicated.

“That test,” Justice Alito wrote, “was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not contested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.”

On the other hand, Justice Alito wrote, Danny Birchfield, who was arrested in North Dakota after driving his vehicle into a ditch, had been entitled to refuse a blood test.

The Supreme Court returned the case of a second North Dakota man, Steve M. Beylund, to the courts there to determine whether he had voluntarily consented to a blood test.