Alabama Law Enforcement Officers & Prosecutors,
On June 23, 2016, the U.S. Supreme Court delivered its latest decision on impaired driving, Birchfield v. North Dakota[i]. The ultimate issue was the constitutionality of criminalizing chemical test refusals. The Court consolidated and addressed three cases: Birchfield, Bernard v. Minnesota, and Beylund v. Levi. In Birchfield, the defendant was arrested, refused a blood test, and was charged with a violation of the refusal. Similarly in Bernard, the defendant was arrested, refused a breath test, and was charged with a violation of the refusal. Beylund, the defendant in the final case, actually submitted to a blood test after being given an advisory warning that there were criminal sanctions for refusal.
Justice Alito’s majority opinion established refusal laws serve a very important role in combating impaired driving, but the Court drew a distinction between breath tests and blood tests. The Court determined that there are far less privacy concerns with breath tests; therefore, while a breath test was a valid search incident to arrest, a blood test was not a valid search incident to arrest. This determination allows for states to criminalize the refusal of a breath test, but not of a blood test.
Prosecutors, please note that this is a categorical exception and not subject to a case-by-case analysis. Breath tests are permissible based upon a valid arrest for impaired driving. This is the first time the U.S. Supreme Court has found breath testing valid as a search incident to arrest and the refusal of which can be criminally punished. The Court also limited it’s ruling to criminal refusal statutes, and left unchanged the civil or administrative license suspension consequences for refusal. The constitutionality of implied consent statutes is reaffirmed by this Court stating, “prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply . . . and nothing we say here should be read to cast doubt on them.”[ii] This approval includes the admissibility of the defendant’s refusal as evidence in the criminal case under Neville[iii].
The State of Alabama and our implied consent statute[iv] is within the constitutional bounds set by this opinion and should remain largely unaffected. However, the Court did strongly emphasize a preference for blood draw warrants, absent situations that involve consent or the exigent circumstances exception to the search warrant requirement. The Court mentions a scenario involving an unconscious driver and states “when they arise, the police may apply for a warrant if need be.”[v] I encourage all law enforcement to obtain search warrants in these cases, if the situation will allow it. Otherwise, we must follow the “totality of the circumstances” test given to us in McNeeley[vi] and be able to articulate the specific facts that led us to using the exigency exception. Going forward, I do not believe we can strictly rely on the implied consent statute any longer.
If there are any questions or concerns about this information, or any traffic safety related issues, I am here to address your needs. Please do not hesitate to contact me. We all have the common goal to reduce the number of impaired drivers and fatalities on our state’s roads. By working as a team, we can continue to make great strides toward this goal.
[i] Birchfield v. North Dakota, 2016 WL 3434398, ___ S. Ct. ___ (June 23, 2016).
[ii] Id. at 36
[iii] South Dakota v. Neville, 103 S. Ct. 916 (1983).
[iv] §32-5-192, Code of Alabama (1975)
[v] Birchfield at 35
[vi] Missouri v. McNeeley, 133 S. Ct. 1552 (2013)