Supreme Court considers whether warrantless breath test requires a search warrant in Maryland DUI arrest

Yesterday, the Supreme Court heard oral argument in the warrantless breath test cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015), Bernard v. Minnesota, 136 S.Ct. 615 (2015), and Beylund v. Levi, 136 S.Ct. 614 (2015).

The issue before the Supreme Court is whether a state can criminalize a refusal to submit to a warrantless breathalyzer.  In layman’s terms, penalizing a person for exercising their constitutional right to require the government to comply with the Fourth Amendment.

In Maryland, there is a sentencing enhancement of up to 60 days incarceration that applies if a person is found to have knowingly refused a warrantless breath test.  After a DUI arrest in Maryland, a drunk driver is told there is a possible jail sentence if they refuse the warrantless breath test.  As a result, every warrantless breath test in Maryland should be subject to a motion to suppress because giving that advice is coercive and in violation of the Fourth Amendment.

Warrantless Breath Test Raises Interesting Questions from Supreme Court

The argument involved interesting questions from the Supreme Court.

Justice Breyer: “If you’re taking them to the police station anyway to do the breath test, and it just requires a phone call to get the warrant, what’s the problem?”

Justice Kagan: “The Chief Justice’s opinion, even that said ­­ and this was with respect to a blood test. But the Chief Justice’s opinion said, look, if there’s 20 minutes between the time that you’re stopped and the time that we can get you to a hospital to get a blood draw, and you can get a warrant in that 20 minutes, then yes, you have to go get a warrant in that 20 minutes.  So at the very least, why wouldn’t that be the case? You know, if ­­ if you’re ­­ if all of these things ­­ I mean, I have to say when I originally thought about this case, I had in my mind roadside stops. But in all of these cases you’re actually driving these people to a station house. So why can’t you get a at least what the Chief Justice said in McNeely, which is, okay, if you can get a warrant within that time, you have to get a warrant within that time.”

Justice Sotomayor: “Why? You change the law. I mean, you know, it’s as if you want us to create an exception to the Fourth Amendment, and a very drastic one, to give someone the right to say yea or nay without a warrant, but we don’t permit people to say yea or nay when a warrant is present. If they don’t comply they’re charged with obstruction, and there will be consequences to obstruction.”

Justice Kennedy: “You’re asking for an extraordinary exception here. You’re asking for us to make it a crime to exercise what many people think of as a constitutional right. There is some circularity there. And you could point to no case which allows that. So we have to show that there is exceptions there is a necessity for the exception, and you’re just not answering the question about whether or not, in the wake of our recent decisions over the last three or four years, warrants have been expedited in many cases and why; and if they have been, why that isn’t an answer to your argument.”

As you can see, the Supreme Court is having difficulty penalizing people for exercising their right to make the government get a warrant.  The Supreme Court’s decision is expected by the end of June.

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