The U.S. Supreme Court’s decision in Birchfield v. North Dakota[i] deemed that breath tests were valid as a search incident to arrest, but did not extend this exception to blood tests.  The Court emphasized a preference for blood draw warrants and, absent situations that involve unquestionable consent or the exigent circumstances, we must look at utilizing them more frequently.  While the constitutionality of implied consent statutes was not questioned in Birchfield, going forward I have been of the belief that we can no longer strictly rely on implied consent.


For thirty years we have relied heavily on Alabama’s implied consent statute to cover the collection of blood, breath, or urine.  As more drugs appear on Alabama roadways, and in light of Birchfield, we must understand the scope and limitations of implied consent.  Implied consent only applies to alcohol cases[ii] unless there is a crash and someone other than the driver suffers a serious physical injury or there is a fatality[iii].  And only then may we use implied consent to look for amphetamines, opiates, and cannabis.  Today, law enforcement officers are encountering more individuals that are refusing the breath test as well as scenarios where the observed impairment indicators do not match the results of the breath testing instrument.  In each of these cases, I encourage law enforcement to obtain consent or a search warrant for blood.


Consent is the fastest way to obtain a blood sample.  The burden is on the State to show that consent was freely and voluntarily given.[iv]  Voluntariness is to be determined from the totality of the circumstances that the officer includes in his or her report.  When we start talking about the effect of impairment on a defendant’s ability to consent, we need to make sure that the consent is the product of a “rational intellect and a free will.”[v]  There will be those instances where the person is so impaired they cannot issue a valid consent.  The officer is not without recourse in these scenarios; a search warrant is always an option.  By obtaining a search warrant, an officer narrows what can be challenged in a court of law and can reduce his or her time in court.


The situations where the impairment does not match the observations or where there is a refusal, obtaining a blood sample is furthering the investigation.  This blood sample is providing the trial court with more evidence for evaluation in the pursuit of justice.  A prosecutor using this blood sample cannot admit it under the statutory predicate[vi].  He or she will have to admit those results utilizing the traditional evidentiary predicate.[vii]  Requesting and/or obtaining a blood sample in these situations does not impact implied consent.


You may also have questions in regard to your civil liability in these matters.  Unfortunately, I do not work in that world and would urge you to pose those questions to your agency’s legal department.  If there are any further questions or concerns on this or any traffic safety related issue, I am here to assist you.

1 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)

[ii] ALA. CODE §32-5-192 (2010)

[iii] ALA. CODE §32-5-200 (2010)

4 Bumper v. North Carolina, 391 U.S. 543 (1968)

5 Townsend v. Sain, 372 U. S. 293, 307 (1963)

[vi] ALA. CODE §32-5A-194 (2010)

[vii] Ex parte Mayo, 652 So.2d 201 (Ala. 1994)