The Refusal of a Breath Test is Under Review: 4th Amendment Right or Criminal Action?

The Refusal of a Breath Test is Under Review: 4th Amendment Right or Criminal Action?

This past week, oral arguments at the United States Supreme Court (USSC) were held on one of the most important issues in DUI law to date. Previously the USSC issued a DUI law decision requiring a search warrant in order to take blood from a DUI suspect, and this week’s arguments/cases issue is whether refusing to provide a breath sample is indeed a separate criminal offense within a DUI charge.

The analyses is under the 4th Amendment of the United States Constitution and whether refusing to allow a search of the body by way of breath testing is "reasonable." The issue of criminalized refusals is not an issue in Washington state because a refusal in WA is a A) a clearly enumerated right under the Implied Consent Statute (RCW 46.20.308), and B) The right to refuse a search under the State Constitution is governed by the authority of law standard and not a standard of what is reasonable.

Nevertheless, with the consolidated cases of Baird-Adams pending before the State Supreme Court, on the issue of the right to refuse, and whether that refusal can then be used in a trial against an accused as "consciousness of guilt," the analyses of the USSC is important.

In Washington D.C last week during the oral arguments the majority of Justices appeared to have cast doubt on the criminalization of DUI – Refusals. The issue stems from 13 states of the nation that do indeed, criminalize a driver’s refusal to provide a breath sample or a blood sample when sought by police without a warrant.

In reviewing the transcripts of the argument, the majority of the Court acknowledged the State laws' "good intentions" —continued war on DUI, and there being a particular emphasis in the rural states like Minnesota and also North Dakota — the Court wondered aloud and launched questions at the attorneys as to why police can't get warrants first. In WA State, they can and do, with the ease of merely hitting speed dial on their cell phones. But the government attorneys arguing in the USSC, answered with less clear answers and some went so far as to say that it was more than mere minutes, and instead simply argued that it was too time consuming even in this day and age. Justice Kennedy made the statement to the government lawyers: "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."

Nevertheless, several justices intimated via their questions and statements that tipped their hand to the fact that they may be willing to allow the criminalization for exercising the right to refuse a warrantless breath or blood search without a warrant, because the intrusion is minimal. This highlights the difference between the Federal 4th Amendment that assess "reasonableness" of the warrantless search and seizure, versus the WA State 4th Amendment that requires "lawful authority" or in other words a search warrant.

The intrusion by way of blood, breath or urine tests, was clearly cloaked in the so called "public safety exception" as evidenced by the question of Justice Stephen Breyer: "What is wrong with a Breathalyzer test when it can save lots of lives and is given to those people where there is probable cause ... or at least reasonable suspicion to think they're drunk?"

The interesting thing about this question is that the request at the station has already taken the driver off the road; the arrest is what removes the danger, if you will, and not the test itself. It is easy to see how one, Justice, or lawyer, or even just an interested citizen can get caught up in the rhetoric used in DUI prosecutions, in the name of safety.

The 3 consolidated cases at the USSC at issue and under review were filed by Defendant drivers in Minnesota and North Dakota, as they were charged with the subsequent crime of refusing after they refused to provide a sample of "deep-lung" air into state breath testing machines. There are 11 other states with similar "Refusal" laws: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

The drivers from Minn. And N. Dakota have previously argued their case in Federal district and appeals court where the laws were deemed constitutional and upheld the criminalization of the refusal to search. These matters were then appealed to the Supreme Court where the issue was found to be a significant issue of apparently nationwide importance.

As mentioned above, it was previously held by this very same USSC ruled that law in DUI cases enforcement officers cannot search (by way of a blood draw) a DUI suspect after an arrest without getting a warrant, unless it's there is Consent given or an emergency or what’s called an exigent circumstance. In the prior case ruled upon by the USSC in 2013 the court spent considerable time writing about the right to refuse voluntary searches and the importance of not only the right, but the ease of obtaining a search warrant in this day and age.

As a result I find it hard to see how the USSC can reconcile their past position and their steadfast adherence to the importance of a right and subsequently uphold a law that criminalizes that same right.

The questions asked by the Justices and the briefing provided by the defense attorneys participating in this litigation, whether directly or by amicus, is an excellent example of the rule of law and the entrenchment of our Constitutional Rights as well as the Courts longstanding history of respecting those rights in the face of unlawful and unreasonable government or state actor intrusions. This case is important as we await the State Supreme court cases of not only Baird-Adams, but the matter of Meecham, where the issue is whether roadside sobriety testing in the form of physical maneuvers, which are a search and are voluntary are lawful within the scope of a brief "stop and frisk" exception and whether a refusal to participate in these searches can be used in trial as consciousness of guilt, when, like the breath tests, are a warrantless request to search. We shall see.

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