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

Fourth Amendment Rights

The U.S. Supreme Court has questioned some states’ laws that make it a crime to refuse a breath or blood test without a warrant, and whether or not it is a violation of our Fourth Amendment rights.  The Fourth Amendment of the U.S. Constitution  prohibits “unreasonable searches and seizures” particularly, in this case, the right to be free from a bodily search without the police first obtaining a search warrant.

Refusing a Blood or Breath Test

All American states have laws wherein refusal of a blood or breath test may result in a revocation of driving privileges.  In Wisconsin, if you do not consent to a chemical test of your blood, breath, or urine, you will likely be charged with a refusal.  In our state, it is a civil forfeiture violation for which your operating privileges may be revoked.  However, several other states and the federal government have addition laws in place classifying a refusal charge as a criminal offense – and punishment consists of jail time.  Is a refusal a constitutional right requiring a warrant to require such testing?  In a debate back in April, justices were conflicted about the issue.

Lawyers representing the states or North Dakota and Minnesota argued a warrant does not violate any rights.  Blood and breath tests are reasonable methods to search.  They are painless, minimally invasive (especially for breath tests), and the gain is great.  Blowing in a straw can easily be done on the side of the road.  They are necessary for accurate detection of blood alcohol concentration in a person’s body.  It would take extra time to obtain a warrant, especially in rural areas with limited resources.  In that time the levels could potentially decrease.  Additionally, when a driver obtains a license, they are giving “implied consent,” which is an agreement that you are allowed to drive if you consent to a blood or breath test if requested.

Lawyer Argues it is A Violation

The lawyer representing the defendants of the two states argued it is indeed a violation and it would not be difficult to obtain a warrant.  More than forty states already have systems in place for obtaining warrants electronically and can be done in mere minutes.  Even in Wyoming which is considered a very rural state, it takes only five minutes to obtain a warrant.  As far as not being intrusive, that may be so for a breath test but could be argued for a blood test. Even though the gain may be great, that does not make if justifiable.  A comparison was made that if police officers carried around a machine to x-ray all vehicles, they would certainly find a lot of weapons, drugs, etc. but would most definitely violate our rights to privacy.  As for the implied consent, the lawyer representing the defendants suggested they did not know they had ever consented to this deal, and most likely many more are unaware.

Are Warrants That Difficult?

Is it that difficult to get warrants first?  It is hard to determine.  The National Highway Safety Administration has conducted studies which show that routine warrant procedures do result in less occurrences of refusals as well as less incidents of drunk driving convictions.  A decision, in this case, is expected by the end of this month.