Can police penalize drivers who refuse sobriety tests?

At least a dozen states have made it a crime for suspected drunk drivers to refuse a chemical sobriety test. But some opponents say these laws violate the Fourth Amendment, and are taking their complaints to the high court. The Supreme Court considered three related cases from North Dakota and Minnesota on Wednesday. Hari Sreenivasan talks to Marcia Coyle of The National Law Journal for more.

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    But, first, a dispute over some laws in states to curb drunk driving.

    Over the years, at least a dozen states have made it a crime for suspected drunk drivers to refuse to take alcohol tests. But does a police officer have to get a search warrant before performing such a test? And do these laws violate the Fourth Amendment?

    The Supreme Court grappled with these questions today, as it considered three cases challenging laws of this sort in North Dakota and Minnesota.

    Marcia Coyle of "The National Law Journal" was in the courtroom, as always, and she joins me now.

    So, what's the hassle in getting a warrant before you do one of these tests?

  • MARCIA COYLE, The National Law Journal:

    Well, if you are asking the states of North Dakota and Minnesota, who are involved in this, they say that, one, you don't have magistrates available 24/7 to answer a police officer's call for a warrant.

    It can take a while. There are concerns about, you know, evidence being lost. But, basically, the states are saying here, look, states have a bargain with drivers. Driving is not a right. It's a privilege. And when you get your license, you're agreeing — you're impliedly consenting to certain requirements.

    And the states feel these states — there are 12 of them now and the federal government — impose criminal penalties if you refuse to take these tests.


    So, if you — is there a distinction between the type of test that can be taken, a Breathalyzer that we're familiar with, a field sobriety test if you're just walking a line, vs. a blood test?


    During the arguments today, that really did come out in some of the justices' questioning, Justice Breyer, for example.

    By the way, Hari, this was a great example of how they play devil's advocate with each side. Justice Breyer, for example, said to the lawyer who was representing the three men challenging these laws, you know, what's the big deal about a breath test, for example? You blow into a straw that's connected to a little machine that's about the size of a cell phone. You're giving up carbon dioxide that's going to go into the environment anyway. It's not all that invasive, not all that intrusive.

    On the other hand, then, when the states' lawyers came up, he said — would say to them, well, look, how long does it take to get a search warrant for these breath tests? Wyoming says it takes five minutes. Montana says it takes 15 minutes. How long does it take in North Dakota?

    And if they're transporting these people after they have been arrested to a police station, why can't the police officer just make the call on the way, maybe on a cell phone that has a big W for warrant on it, press the button?

    It was — the argument was a lot of fun in some respects. So, at the very end, though, Justice Kennedy asked the Obama administration's lawyer, who was supporting the states, can we distinguish between the breath test and the blood alcohol test?

    And the Obama administration's lawyer said, well, yes, you can, because a breath test is not as invasive as a blood alcohol test. It's faster. You can do it as part of the booking process at the station, whereas a blood alcohol test has to be done at a hospital.

    But he also said he didn't think a warrant was a good fit for a breath test. And here's the reason why, he said. Police officers use warrants to force compliance, and you can't force somebody to blow into a straw. But he said, if you do impose a warrant requirement on breath tests, police officers are going to start doing blood draws, because you can force somebody to give blood in the hospital under restraint. You can take their blood.

    So, I think the justices are wrestling with the difference between the two. And three years ago, the court actually dealt with warrants and blood alcohol draws. The decision was kind of fractured. Police then argued they didn't need warrants because this was what they — an exception to the Fourth Amendment, an exigency circumstance. Blood alcohol dissipates quickly. You don't have time to get a warrant.

    Well, the court didn't buy that entirely. It said, basically, not every time you need a blood alcohol draw is it an emergency situation. Courts have to look at the totality of the circumstances. But because it was a fractured decision, nothing really was clear.

    And I think the court took these three cases, two involving blood alcohol draws, one involving the breath test, in order to try to resolve this or clarify the law in terms of the warrant requirement.


    All right, Marcia Coyle of "The National Law Journal," thanks so much.


    My pleasure, Hari.

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