Skip to main content
You have permission to edit this article.

Supreme Court limits warrantless blood alcohol tests

Supreme Court building

Justices at the Supreme Court building, shown here in June 2014, in Washington, D.C.,. heard arguments on the legality of warrantless blood, urine and breathalyzer tests.

In a case brought by two North Dakota men and a Minnesota man, the U.S. Supreme Court decided Thursday to limit penalties for refusing a blood alcohol test. Though the decision will force the state to change how it polices DUIs, law enforcement said it will not hinder their ability to prosecute drunken drivers.

The case, Birchfield v. North Dakota, pitted the scourge of drunken driving against a person's Fourth Amendment right to refuse a warrantless search. 

The court decided that refusing to take a blood test during a drunken-driving arrest cannot be a crime, but refusing a breath test can. In effect, the court struck down a state law criminalizing refusal of a blood test.

The difference is that blood tests are more invasive than breath tests, the court held. A breath test is part of a normal search of a person during an arrested. A blood test, on the other hand, involves extracting part of a person's body, and the sample contains additional biological information. 

"There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads," Justice Samuel Alito wrote in an opinion joined by Justices Roberts, Kennedy, Breyer and Kagan. 

In their arguments before the court, lawyers for the alleged drunken drivers argued that a person had a right to refuse a blood or breath test without the threat of jail time. Lawyers for the state argued that a person implicitly agrees to a chemical test when driving on a public road. 

The decision will affect North Dakota, Minnesota and 11 other states with laws criminalizing refusal of a blood test. It does not restrict law enforcement's ability to impose civil penalties, such as license suspensions, for the same action.

“We knew this was coming," state court administrator Sally Holewa said. "We weren't sure the extent."

In early May, Chief Justice Gerald VandeWalle convened seven judges to develop a plan for each district, Holewa said. The idea is to have an on-call judge, who can respond to emergency warrant requests. At the judicial conference in Grand Forks last week, judges demonstrated how they use email and e-signatures to sign warrants electronically.

The group aims to present a plan to the North Dakota Supreme Court within two weeks, Holewa said.

State Attorney General Wayne Stenehjem said he is also committed to applying the court's decision.

"We will ensure that law enforcement comply with the requirements," Stenehjem said in an interview. "I think it will make it much more likely that jurisdictions rely on the breath tests instead of the blood tests."

On the local level, Bismarck Police Chief Dan Donlin said the decision will not affect his officers' ability to arrest drunken drivers.

"The way majority of the time, we’re taking a breath test. We try to avoid the blood test unless it’s the only option," Donlin said.

While the decision may seem like a victory for the alleged drunken drivers, their attorneys are disappointed the court distinguished between blood and breath tests. 

"They’ve created a new rule that dilutes the Fourth Amendment," said Dan Herbel, who represents Danny Birchfield. The decision could become a precedent for other warrantless searches, Herbel said.

Tom Murtha IV, the Dickinson attorney representing plaintiff Steven Michael Beylund, argued that breath tests are more intrusive than the court conceded.

"Being told — Blow into this machine and make sure you keep blowing until I tell you to stop and I'm satisfied that you've given me the evidence that I'm going to use to convict you — that seems very unfair that law enforcement should be allowed to do that to someone without a warrant," said Murtha.

Murtha also noted that the decision leaves a number of questions unanswered: Should police need a search warrant for a urine test? If an officer threatens a criminal penalty for a blood test, can this evidence be used in a civil case?

The North Dakota law criminalizing refusal dates to 2013, when the state stiffened drunken-driving laws, adding mandatory minimums and longer sentences for repeat offenders.

"I wanted to challenge [the law] the moment it passed," Herbel said. "What’s so perverse about criminalizing refusal, is that you’re saying a group of legislators in North Dakota can sit down and criminalize a constitutional right."

Reach Caroline Grueskin at 701-250-8225 or at


Be the first to know

* I understand and agree that registration on or use of this site constitutes agreement to its user agreement and privacy policy.

Related to this story

Get up-to-the-minute news sent straight to your device.


News Alerts

Breaking News