Birchfield v. North Dakota: Warrantless Blood Tests (06/23/16)


Birchfield v. North Dakota

Should the Fourth Amendment permit warrantless breath tests that are incident to arrests for drunk driving, but not warrantless blood tests under the same circumstances?

See Fourth Amendment for more.

Argued: 4/20/16

Decision Date: 6/23/16

Decision Record: 7-1; yes

Justices in Favor: John Roberts (RC*), Samuel Alito (R), Anthony Kennedy (LC), Ruth Bader Ginsburg (L), Stephen Breyer (L), Sonia Sotomayor (L), Elena Kagan (LC)

Justices Dissenting: Clarence Thomas (R)


Effect of the Decision

This case allows the police to perform warrantless breath tests when there is a reasonable cause for the suspicion of drunk driving, but disallows warrantless blood tests under the same circumstances.


In Favor

In the defense of Mr. Birchfield, attorney Charles A. Rothfeld argued, “The fundamental problem with the statutes at issue in these three cases is that they make it a criminal offense to assert a constitutional right. Under laws of North Dakota and Minnesota, a person who is stopped on suspicion of impaired driving is obligated to take warrantless blood tests to determine the alcohol content of their blood. The States concede that these tests are searches under the meaning of the Fourth Amendment.

The United States and North Dakota appear to recognize that no exception under the recognized exceptions of the warrant requirement applies.

Nevertheless, a person is obligated to take this warrantless — to submit to this warrantless search, and is committing a criminal offense if he or she does not do so.”

Rothfeld stated that in North Dakota, Minnesota, and North Carolina, the law makes an exception for warrantless blood tests, because this question has never been brought up before in court.


In opposition, North Dakota’s attorney, Thomas R. McCarthy said, “The North Dakota statute strikes a bargain with individuals who wish to use the State’s public roads. Conditioning their use thereon, on consent to a blood-alcohol test, if arrested for drunk driving, the Court has held that this is a valid bargain, and that States may enforce it with the imposition of significant consequences, including license revocation and the use of test refusal as evidence in criminal proceedings.”

He was arguing that when the state provides the driver’s license, the new driver is consenting to warrantless blood tests.

Then attorney Kathryn Keena proceeded to defend Minnesota. “It may be possible to get a search warrant in every case, but if that’s what this Court is going to require, in Minnesota, we are going to be doing warrants and blood draws in every case. And that is not what this Court wants.”

After, in North Carolina’s defense, attorney Ian H. Gershengorn states, “It would be a mistake to have a warrant requirement. In the real world, I think it’s critically important that this Court not assume that warrants are available 24/7.

That is not the case in the real world. The Court knows that from the NHTSA studies that are in the record.

The North Carolina example is one. What the — what the study did there was compare three jurisdictions that were able to put in a warrant requirement against the nine jurisdictions that, for various resource reasons, availability of judges reasons and other reasons, were unable to do it. The experience of the park police, I can tell you in the wake of McNeely, is that while they can get the warrants 24/7 in Maryland, they have stopped doing blood draws, except in extraordinary cases in Virginia and D.C. because the magistrates are not available 24/7.”


The majority opinion paper, written by Samuel Alito, stated, “Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable—e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious—nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.”

However, in the dissenting side, Clarence Thomas wrote, “The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in McNeely. Under that approach, both warrantless breath and blood tests are constitutional because ‘the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.’”

My Opinion:

I agree with the majority’s opinion in this case. The Fourth Amendment gives a person the constitutional right to privacy and to feel secure in their own persons, houses, papers, and effects, against unreasonable searches and seizures. Performing a warrantless blood test would be a violation of the Fourth Amendment constitutional right to feel secure in one’s own person. Blood exists within a person’s body, and therefore it would be unjust for law enforcement to extract one’s blood without a warrant.

Blood tests are considered more invasive, because the task performers are inserting a needle into a person’s body. On the other hand, in a breath test, the breath has left the body and has entered the public domain.

There was no logical argument presented supporting the supposition that the police are unable to obtain a warrant for a legal blood search within a reasonable period of time.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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