The highest court in the land is currently deciding a case that can have an enormous impact on Driving Under The Influence (DUI) cases in Florida and twelve other states. Each of those thirteen states makes it a misdemeanor criminal offense to refuse to blow into a breath machine while under arrest for DUI. The Court is reviewing whether it is unconstitutional to charge someone with a crime for refusing to blow. In their discussions concerning this case, it appears that the Court is looking at DUI breath cases as a whole and wondering whether police should have to first secure a warrant to begin with before requiring someone to blow into the machine.
When a police officer requests a breath sample, he/she is performing a search. It’s a search of an arrestee’s body to determine the alcoholic content of their blood. Because it’s a search, that triggers an analysis under the 4th Amendment of the U.S. Constitution, which prohibits unlawful searches and seizures. The general rule under the 4th Amendment is that a warrant is required prior to any search by law enforcement. There are a number of exceptions. Those exceptions generally involve the personal safety of the arrestee and/or to preserve evidence. While in 2013 the Court ruled that blood tests cannot be performed without a warrant, the state courts have permitted officers to perform warrantless searches by asking DUI suspects to blow into breath machines. It is possible that all of that police action might change based upon what the justices have been saying this week concerning this issue.
First, Justice Anthony Kennedy called it an “extraordinary exception” that the lawyers for the states were asking him to make. He has serious reservations about continuing to allow states to criminalize a DUI suspect’s refusal to blow. He explained that most people think refusing to blow falls under a constitutional right that they have.
Additionally, some justices voiced their concern, wondering why law enforcement can’t simply secure a warrant within minutes, prior to requiring a breath test. In response to that argument, the attorney for the states expressed that some rural areas with very small police departments may have a problem being able to obtain a warrant so quickly. Furthermore, while waiting to get the warrant, the alcohol level in a DUI suspects body is going down, causing valuable evidence to be lost.
Other justices argued that they had no problem with a criminal sanction for refusing the breath test absent a warrant, since a breath test, which simply involves blowing air into a little box, is a minimal intrusion. On the contrary, blood and/or urine tests still require a warrant because the intrusion is much greater. Justices also spoke of how the policy of offering Breathalyzer tests is a positive thing in that it can save many lives and is only offered when there is probable cause to believe that someone is impaired.
While I can never be sure what the Supreme Court will rule, I do have a gut feeling that they will rule against the states, requiring a warrant before requiring a breath test. At a minimum, I believe they will find that criminalizing one’s refusal to blow is unlawful. They have already ruled that law enforcement officers cannot search the cell phone of a driver absent a warrant to find out if that driver had been texting while driving. I believe that at least as many people or more are killed as a result of texting while driving than due to DUI. I suspect that the Court will rule as they did in the cell phone cases, ending once and for all the warrantless breath testing that law enforcement have been conducting for decades, in spite of the benefits to society.