Supreme Court to determine if states can imprison drivers for refusing Breathalyzer


A dangerous combo that can land you in prison for more than one reason. (Photo by Donovan Rice)

The U.S. Supreme Court is currently deciding on a case considering the constitutionality of a state imprisoning or fining an arrested drunken driver for refusing to take a Breathalyzer test without a warrant.

In the oral argument for Birchfield v. North Dakota and two other cases last Wednesday, the Court heard if a state can criminally punish someone for what the petitioners would like to call the assertion of one’s constitutional right, referring the Fourth Amendment’s warrant clause. The respondents, however, look at it as punishing drivers for not following an implied contract made with the state.

“One way of looking at what the State is doing is not to criminalize the assertion of a constitutional right, but to criminalize reneging on a bargain,” said Justice Samuel Alito to the petitioners during the case. “The bargain was, we give you a license to drive, and in exchange for that, you consent to a blood-alcohol test under certain circumstances.”

“You’re asking for us to make it a crime to exercise what many people think of as a constitutional right,” said Justice Anthony Kennedy to the respondents. “There is some circularity there. And you could point to no case which allows that.”

To get a local perspective on the issue, students of the University of Denver were asked for their thoughts.


Rachel Wagner, a first-year student at DU. Question: “Do you think that blood tests and breath tests have the same degree of invasiveness, and do you think that plays any role in this discussion?” Answer: “I don’t think they should be considered the same, because one is obviously way more invasive, but I still think that you should be allowed to refuse a Breathalyzer in the absence of a warrant.” Interviewed and photographed in Margery Reed Hall on Thursday, April 21, 2016.

“No one should be going to prison for not consenting to a Breathalyzer,” said Rachel Wagner, a freshman studying Public Policy. “I don’t see why a Breathalyzer is any different from searching your bag. They need a warrant.”

“Looking into someone’s bag is super different,” said Lexxi Reddington, a freshman studying Chemistry and Physics. “I don’t see how Breathalyzers are invasive at all. You literally blow into something.”

In Missouri v. McNeely, the Court determined that warrants generally must be obtained for blood tests for arrested drivers. The question remains if blood and breath tests’ differing degrees of invasiveness constitutionally separate the two. Blood tests also require the suspect to be taken to a hospital, whereas officers can administer breath tests at the station.

Another major consideration is the timeliness of obtaining a warrant.

While the case pertains only to those who have already been arrested and taken to the police station, if it takes several hours to obtain a warrant, issues could potentially arise.


Lexxi Reddington, a first-year at DU. Question: “In your own opinion, how serious of a case do you think this is?” Answer: “I don’t think I really understand why people are getting mad. They don’t want a Breathalyzer because it will prove without a doubt that they are drunk – that they’re guilty. Is that the issue?” Interviewed and photographed in Johnston-McFarlane Residence Hall on Thursday, April 21, 2016.

“I don’t see how you could get a warrant just to breathalyze someone,” said Michael Young, a freshman currently undeclared. “First of all, it takes forever to get a warrant — or I think.”

According to an amicus brief for the case by the National College for DUI Defense, 42 states currently allow officers to obtain warrants telephonically or electronically. Using these technologies, an officer can obtain a warrant in minutes, not hours.

That still leaves the eight states that do not make use of such technologies, however. Even in the 42 states that do, rural areas are suspect, as many only have one judge or magistrate on-call late at night, rather than immediately available, according to the respondents.

“So that excuses you from a constitutional requirement?” asked Justice Sonia Sotomayor in response to this defense. “Since many jurisdictions seem to manage it, we give a pass to North Dakota because it doesn’t want to?”

Perhaps the biggest debate in the case is if drivers imply consent to testing in exchange for the state issuing them licenses.


Michael Young, a first-year student at DU. Question: “Any parting thoughts?” Answer: “I think there needs to be a more unifying, homogenous law [across the states]. That’s one of the cons in my mind of states versus federal government.” Interviewed and photographed in Johnston-McFarlane on Thursday, April 21, 2016.

“You don’t have the right to be drunk in your own car,” said Reddington. “And if they pull you over because you’re driving drunk, then they should have the right to breathalyze you.”

“Implying is the key word,” said Young. “You’re not obligated. You’re implying. That’s where I find a lot of gray within a lot of laws — that you’re assuming things. Implying isn’t law.”

A proposed solution by Wagner would be to revamp the document that drivers sign when obtaining or renewing their licenses. If it explicitly stated that drivers forfeit their right to refuse when arrested, then the states should be constitutionally secure, according to Wagner.

Another potential solution would be a nation-wide campaign to eliminate drunken driving, as proposed by Reddington. Then the debate would be irrelevant.

“Maybe people just shouldn’t drink and drive,” said Reddington. “That would be a good place to start.”


One thought on “Supreme Court to determine if states can imprison drivers for refusing Breathalyzer

  1. Great piece on an interesting topic that I have never considered. I really like how you formatted this piece, with the quotes nicely interwoven between your research. It was also nice to read contrast in the people you interviewed-the last interviewee Michael Young was super articulate and gave a really insightful quote. With this, I found that the information you provided was unique, such as the states who obtain warrants telephonically or electronically. Finally, I thought it was helpful how you included suggestions on how to resolve the issue as your concluding paragraphs.
    Interested on your point of view.


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