Supreme Court Strikes Down North Dakota Drunk Driving Law Criminalizing Refusal of Blood Tests


A set of car keys in the foreground and glass of whiskey behind.

In a nutshell, the Supreme Court said laws criminalizing the refusal of a warrantless breathalyzer test are constitutional. Blood tests, however, will require a warrant.

Here’s how we got there.

During the 2013 legislative session North Dakota lawmakers passed a number of laws to address drunk driving. Among the changes was a law which makes it illegal to refuse sobriety tests.

Previous to the reforms, refusing a test absent a warrant was met with a civil penalty in the form of action against your driving privileges. But the legislature upped the punishment to an actual crime on par with getting a DUI.

Section 39-20-01 of the North Dakota Century Code states, “refusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence.”

The legislature basically made you automatically guilty of a DUI-equivalent crime if you refused blood test requested by an officer investigating a DUI.

Not surprisingly, the matter was challenged in court.

In October of 2014 one Danny Birchfield was found to have driven into the ditch. Mr. Birchfield is probably not the most sympathetic of defendants as he blew a .254 BAC in his breathalyzer test, making it pretty clear that he was inebriated. Later, however, he refused permission for a blood test and was charged with a Class B Misdemeanor under the aforementioned law.

Birchfield and his attorneys sought to have the criminal charge dismissed arguing that you cannot make it illegal to refuse a search. The district court disagreed, and Mr. Birchfield was convicted. The North Dakota Supreme Court upheld the conviction.

“We conclude the criminal refusal statute is not unconstitutional under the Fourth Amendment or N.D. Const. art. I, § 8,” wrote Justices Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle in a unanimous opinion.

You can read the ruling in the State of North Dakota vs. Birchfield here.

The case was appealed to the U.S. Supreme Court, which accepted it along another case from North Dakota and one from Minnesota. In oral arguments attorneys for North Dakota and Minnesota pretty much bombed, so it is perhaps not surprising that the Justices came down against the states.

In the court’s majority opinion, Justice Sam Alito writes that criminalizing the refusal of a warrantless breath test is not unconstitutional because breath tests are minimally invasive and to declare them unconstitutional would put too great a burden on local courts which would inundated with requests for warrants for the tests. But Alito writes that criminalizing the refusal of a blood test is unconstitutional because blood tests are significantly more invasive, and besides the state already has the breath tests available to them.

An excerpt:


Justice Sonia Sotomayor wrote a partial dissent. She wanted to go further and strike down laws criminalizing the refusal of breath tests as well. I tend to agree with that. So what if getting warrants for breath tests would be a pain in the ass for cops and judges? I don’t think we should set aside constitutional protections because complying with them is difficult.

I don’t think it should ever be a crime to refuse a warrantless government search. Call me old fashioned.

Anyway, for the Birchfield case specifically, the Supreme Court has overturned his conviction for refusing a warrantless blood test.

The other North Dakota case, involving Steve Michael Beylund, was remanded back to the state Supreme Court which will need to reconsider it in light of the Supreme Court ruling. Beylund consented to a warrantless blood test, but only after being told that refusing it was a crime.

The Minnesota case, involving William Robert Bernard, saw his conviction upheld because it involved the refusal of a warrantless breath test.

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