Breathalyzers and Blood Tests: A Review of Birchfield v. North Dakota

Allie Carter (CMC ’19)

Birchfield v. North Dakota (2016) raised the question of the constitutionality of police testing of the blood alcohol concentration of drivers. The Court focused on whether states can criminalize an individual’s refusal to submit to a blood alcohol or breathalyzer test. Ultimately, the Supreme Court came to the conclusion that, under the protection of the Fourth Amendment, refusal of blood alcohol tests without a warrant is justified. However, the Court also held that the refusal of breathalyzer tests is not justified, as there is little intrusion on privacy. As drunk-driving related accidents account for 1 death every 51 minutes and the annual cost of drunk-driving related accidents surmounts to more than $44 billion, precautions to prevent such occurrences are undoubtedly important. Yet, these precautions must still be balanced with the constitutionally guaranteed right to protection from unreasonable searches.  

All states have laws that make driving with a blood alcohol concentration (BAC) past a specific level illegal. BAC levels are ascertained through blood samples or through the use of a machine that computes a level of alcohol present in someone’s breath, called a breathalyzer. Initially, the punishment for failing to agree to a blood alcohol or breathalyzer test was the suspension of one’s license. However, some states, such as North Dakota and Minnesota, have moved to make the refusal of these tests a criminal offense.

Three instances led to the Supreme Court’s examination of this issue. After driving into a ditch in North Dakota, Danny Birchfield failed both a field sobriety test and a breathalyzer test. After being arrested, Birchfield refused to allow the police to administer a blood alcohol test A similar instance occurred in Minnesota after police were notified men had been trying to pull their boat out of a lake and onto their truck. William Bernard Jr. confessed that he had been drinking while holding truck keys, but promised he had not driven under the influence. Bernard went on to decline to take the blood alcohol test. Both Birchfield and Bernard were charged with misdemeanors for their failure to consent to a blood-alcohol test in violation of state law. In the last instance, Steve Beylund agreed to a blood alcohol test to verify he had been driving under the influence of alcohol after being notified refusing one would be considered a criminal offense. The test affirmed that he had been driving under the influence of alcohol and Beylund was prosecuted accordingly.  

Birchfield, Bernard, and Beylund all challenged the state statutes that criminalized rejecting to comply with blood alcohol tests. The men contended that the rights granted under the Fourth Amendment were violated because the statutes did not require a warrant and so their right against unreasonable searches was breached. The Minnesota and North Dakota Supreme Courts decided that criminalizing an individual’s decision to deny taking a blood alcohol test did not violate the Fourth Amendment because of their perception that a blood test was not entirely invasive. However, the case had gained momentum and eventually reached the Supreme Court.  

Ultimately, the Supreme Court decided that refusing a warrantless blood test was not a criminal offense, but refusing a warrantless breathalyzer test remains a criminal offense. The Supreme Court’s decision stems from the nature of both tests. The Court argued that breathalyzer tests are neither intrusive nor do they reveal personal information. Alternatively, the Court deemed blood tests intrusive, as they necessitate drawing blood and taking a sample from an individual’s body. The sample ascertained by a blood test displays additional information beyond the BAC reading, such as one’s medical history and illnesses that may have nothing to do with whether the individual was driving while intoxicated. This breach of privacy is significant because the police obtain information not relevant to the question at hand without the consent of the individual.

In the Court’s decision, they acknowledged that there may be times that a blood test is necessary, such as when a suspect is unconscious. In these situations, a warrant can be quickly produced for the blood test. However, the Court emphasized that in general, breathalyzer tests are the best option, as they are neither invasive nor revealing.  

The Court’s compromise to criminalize the refusal of a breathalyzer test rather than the refusal of a blood test balances the need of the states to stop those driving under the influence while still protecting individual’s right to not have to undergo unreasonable searches. While the difference between a breathalyzer test and a blood test is seemingly arbitrary, the Court’s decision reflects an increased concern with information privacy in the modern age.

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