Updated on February 3rd, 2021 at 10:49 pm

This week the Supreme Court issued its opinion in the case of Birchfield v. North Dakota. The issue in the case was whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s breath or blood. Currently 12 states, not including Wisconsin, impose criminal penalties on suspected drunk drivers who refuse to take chemical tests of their breath or blood. Writing for the majority, Justine Samuel Alito held that the Fourth Amendment right to be free from unreasonable searches and seizures forbids the police from conducting warrantless blood tests. However, warrantless breath tests, and the accompanying criminal penalties for refusing a breath test, were deemed constitutionally permissible.

Beginning with The Difficulties

The opinion began by outlining the difficult problems states faced when combating drunk driving. To fight the “grisly” death toll caused by drunken driving, all 50 states have enacted “implied consent” laws. These laws are designed to force drivers to take the breath or blood test. By driving on a state’s roads you are deemed to have consented to such testing if you are suspected of drunk driving. In addition, state’s continuously pass tougher penalties on drivers who are convicted of drunk driving. This has led to many drivers choosing to refuse the tests, believing that the consequences of a refusal will be less than the penalties if convicted of drunk driving. If the driver refuses, law enforcement has to obtain a warrant to force the person to provide a sample. Accordingly, twelve states, including North Dakota and Minnesota, passed laws to make it a crime to refuse the test. So how did the court decide that warrantless breath tests are acceptable under the 4th Amendment but blood tests are not?

The 4th Amendment and Warrantless Breath Tests

First, the court explained that alcohol testing is clearly a search for purposes of the 4th Amendment. Warrantless searches are per se unreasonable under the 4th Amendment unless the search falls within one of the certain exceptions. The exception, in this case, is the right of police officers to conduct a search of the suspect whom they are arresting. However, the court still needed to conduct an analysis of whether a search of the suspect’s breath and/or blood fell within this specific exception. To do so, the court contrasted the extent to which the search intrudes on the privacy of the suspect vs. the extent to which the search promotes legitimate government interests – namely finding and prosecuting drunk drivers.

For breath tests, when weighing privacy vs. governmental interests, the Court determined that the government’s interests won – warrantless breath tests are constitutionally permissible for 4th amendment purposes. This is because breath tests provide police with only one piece of information, breath alcohol concentration, and the court viewed breath tests are not very intrusive or embarrassing. On the other hand, blood tests are significantly more intrusive. Blood tests require that the skin be pierced, a blood sample taken and stored by the government, and the blood sample can be tested for additional things like drugs and DNA besides blood alcohol concentration. For those reasons, the court determined that for blood tests privacy interests win, and the police would need a warrant to take your blood. For practical purposes, if a driver refuses a breath or blood test the government will need to get a warrant for a blood draw if they want to perform a chemical test. This is because if a person resists it is near impossible to force them to provide an adequate breath sample. On the other hand, after obtaining a warrant law enforcement personnel can physically restrain a suspected drunk driver and take a sample of their blood.

The Current State of the Laws in Wisconsin

Wisconsin does not currently impose criminal penalties for refusing a blood or a breath tests. Refusal penalties in Wisconsin are currently limited to driver’s license consequences including revocation and ignition interlock device requirements. As such, as the law currently stands, Birchfield will not have an impact on Wisconsin drivers.

The New Ruling Can Change That

However, under Birchfield, the Wisconsin legislature now theoretically has the ability to impose criminal refusal penalties, including jail time, for refusing a breath test. Legislators are continuously looking for ways strengthen drunk driving laws and criminalizing breath test refusals may be their next step. Because 1st offense drunk driving convictions in Wisconsin are civil rather than criminal in nature, unless the legislature also criminalized 1st offense drunk driving in Wisconsin, most likely the legislature would criminalize 2nd and subsequent refusals of chemical tests. For drivers who refuse blood tests, the government will still need to get a warrant to obtain a sample of the driver’s blood if they refuse to provide a sample. Accordingly, because a warrant is necessary, the government will not be able to impose criminal penalties for refusing a blood test.