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Birchfield v North Dakota – Need a Warrant for Blood test but just an arrest for Breath test

On June 23, 2016, the United States Supreme Court ruled in Birchfield v. North Dakota that the Fourth Amendment permits warrantless breath tests incident to arrest but not warrantless blood tests. This effectively means that police only need to arrest you for DUI to obtain a breath test and if you refuse or can not produce a breath sample you can be charged with a crime for refusing if your state has such law or even charge with misdemeanor obstruction of a law enforcement officer if your state does not have a refusal law.  You do not have to give the police consent to take your breath sample for a DUI unless your state has other laws that protect you. If it does you can be sure that your legislature will soon repeal those laws.

The Supreme Court found that a person has no reasonable expectation of privacy in a breath because you have to exhale to live. However, this ignores that breath test devices don’t just test your breath but require you to maintain a certain blow rate for a certain time period. This is not medically possible for everyone and may result in people with colds, asthma, and other breathing conditions going to jail for not just saying they will not blow but because they can not physically blow hard enough.  The same could be true for people who do not speak English, are too scared to speak, or are injured or confused after an accident.  The Supreme Court ignores that most breath tests occur at a police station and not at the side of the road except in Arizona and California where there is both the time and the means to obtain a warrant for breath.

As for blood tests, you can refuse and can not be punished either civilly or criminally. The police must obtain a warrant for blood. This means that most of the Implied Consent laws in this country that can suspend your license for refusing a blood test are unconstitutional.

This is a landmark ruling in DUI law in this country and the implications are still being considered.

-Author: George Creal

Atlanta DUI Attorney | DUI Atlanta