If the police come to your door without a warrant and asked to search your home for stolen property you would have the right, guaranteed by the 4th amendment, to refuse them access.
But what if the state Legislature passed a bill making it so that your refusal of the search was in and of itself a crime equivalent to the crime the cops are investigating? That’s essentially what North Dakota’s lawmakers have done, and that law has been challenged to the U.S. Supreme Court.
During the 2013 session legislators passed a number of laws to address drunk driving. Among the changes was a law which makes it illegal to refuse sobriety tests.
To be fair to the lawmakers, they were trying to address a legitimate problem. “In 2012, North Dakota had the highest per-capita rate of deaths attributable to drunk driving in the United States: 11.3 deaths per 100,000 people, more than three times the national average,” reports SCOTUSblog. “Many of the drivers arrested for driving under the influence in the state – nearly one in five in 2011 – refused to take any test that would allow police to measure the alcohol in their blood, making it harder to bring criminal drunk-driving charges against them.”
Before the 2013 law was put in place refusing a blood 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 literally 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.”
Meaning, in effect, that the legislature criminalized the refusal of a warrantless search.
One of two North Dakota cases going before the Supreme Court (they have been consolidated with one case out of Minnesota dealing with a similar law there) concerns a man named Danny Birchfield. In 2014 Mr. Birchfield blew a .254 in a breathalyzer test after having driven into a ditch.
So, not the most sympathetic of of defendants.
Later, however, he refused permission for a chemical test and was charged with a Class B Misdemeanor under the aforementioned law.
That’s where things get problematic. It’s one thing for the state to act administratively against your driving privileges if you refuse a test. It’s quite another for the state to act against you criminally for exercising your right to refuse a warrantless search.
And it’s not just a 4th amendment issue.
Certain religions have very strict doctrinal beliefs about the removal of blood from the human body. If someone objects to a blood screening for alcohol or drugs on religious grounds, are we to find them guilty of a DUI for exercising their 1st amendment rights?
The 5th amendment prohibits “double jeopardy,” or trying a person twice for the same crime. Since it is possible to charge a person both with a DUI, and for “a crime punishable in the same manner as” a DUI for refusing a chemical test, is that not double jeopardy? Or trying a person twice over for the same crime?
Further, the 6th amendment guarantees every American the right to “have the assistance of counsel for his defense.” A person who has been arrested, and who is being pressured by law enforcement to agree to a search, might reasonably feel confused and desire consultation with legal counsel before making any decisions. Could law enforcement deem the delay of a chemical test until a suspect’s lawyer can be contacted as a refusal punishable by a crime?
Last year the North Dakota Supreme Court upheld this law. “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 upholding a lower court ruling.
Will the U.S. Supreme Court uphold it? And if they do, what ramifications will that have for criminalizing the refusal of warrantless searches in other contexts?