BIRCHFIELD V. NORTH DAKOTA & OUI IN MAINE
Posted by: Edmund R. Folsom, Esq.
Date: July 1, 2016
DISCLAIMER: The following is not legal advice. It is not intended as legal advice and should not be taken as legal advice. I offer it to potentially aid understanding only.
In Birchfield v. North Dakota, 579 U.S. __ (June 23, 2016), the U.S. Supreme Court took up whether warrantless breath-alcohol tests and blood draws are reasonable 4th Amendment searches under the search incident to arrest exception to the search warrant requirement. The Court decided that a warrantless breath-alcohol test is a reasonable search incident to arrest, but a warrantless blood draw is not. Birchfield dealt with three separate cases that were consolidated for appeal: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. Both North Dakota and Minnesota have “implied consent” statutes that require drivers to submit to tests to determine their blood or breath-alcohol level when arrested for DUI. Both states also coerce drivers to comply with that duty through statutes that make it a crime to refuse to submit, and through administrative procedures in which a person’s license is suspended for failing to submit.
In Birchfield, after the petitioner was arrested for DWI, the arresting officer advised him of his duty to submit to an alcohol test. The officer also warned Mr. Birchfield that it is a crime for a person not to submit to a test, with penalties that include mandatory addiction treatment, a fine that ranges from $500.00 to $2,000.00, and at least a year and a day of imprisonment for a repeat offender. The officer asked Birchfield to submit a blood sample, but Birchfield refused to comply. As a result, Birchfield was charged with criminal refusal. He entered a conditional plea of guilty (allowing him to appeal) and was sentenced to serve 10 days in jail, spend a year on unsupervised probation, pay a $1,750.00 fine, and participate in a substance abuse evaluation and a mandatory substance abuse program.
Mr. Bernard was also arrested for DWI. He was taken to a police station where an officer read him Minnesota’s implied consent warnings. Those warnings advise that it is a crime to refuse to submit to a legally-required blood or breath-alcohol test, punishable by up to 90 days of incarceration and a $1,000.00 fine for a misdemeanor violation, and up to 7 years in prison and a $14,000.00 fine for repeat offenders, in addition to administrative license suspension penalties. Officers asked Bernard to submit to a breath test. Because he refused, he was charged with criminal refusal. Because he was a repeat offender, he faced a minimum mandatory three years in prison. Bernard convinced the trial court to dismiss the charge on grounds that breath tests are searches that require a search warrant, which the officers did not have. The State appealed the dismissal, and the case found its way to the U.S. Supreme Court.
Mr. Beylund was arrested for DUI, in North Dakota. At the station, he was read the same implied consent warnings that were read to Birchfield. In the face of those warnings, Beylund allowed police to draw a blood sample that resulted in a reported blood-alcohol level of .25%. Beylund’s license was suspended for two years under a non-criminal administrative suspension process. Beylund appealed the suspension on grounds that his consent was coerced by the officer’s warning that refusing a test is a crime. The North Dakota courts upheld Beylund’s suspension. Beylund appealed, and his case also found its way to the U.S. Supreme Court.
In all three cases, the states argued that the tests they demanded were justified under the 4th Amendment, without a search warrant, as valid searches incident to a lawful arrest. The Supreme Court pointed out that the taking of a breath sample and the taking of a blood sample are both 4th Amendment searches. As a general proposition, a 4th Amendment search requires a search warrant unless it falls within a well-recognized exception to the search warrant requirement. One such well-recognized exception is the exception for probable cause and exigent circumstances. Just three years ago, in Missouri v. McNeely, 569 U.S. __ (2013), the Supreme court held that natural bodily processes that dissipate blood-alcohol do not create a built-in exigent circumstance in every OUI case justifying the warrantless taking of a blood sample. In other words, McNeely says inquiry must be made in each OUI case, to determine whether a warrantless blood draw is justified by exigent circumstances in that particular case. Because the only issue raised in McNeely was whether OUI cases automatically present exigent circumstances, McNeely did not address whether another of the well-recognized exceptions to the requirement of a search warrant might apply to the taking of a blood or breath sample in an OUI case– the exception for searches incident to a valid arrest. That is the question the Court answered in Birchfield.
The search incident to arrest exception allows police automatically to conduct a search of an arrested person and all containers found on the person, simply as an incident to the arrest itself. The search incident to arrest exception is categorical, which means it applies to every arrested person, no matter the particular circumstances of the particular arrest or the particular reason for the arrest. As the Supreme Court put it in United States v. Robinson, 414 U.S. 218 (1973): “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Id. at 235. In Birchfield, the Supreme Court noted that they found no historical guidance as to whether the taking of a breath sample for alcohol analysis would have been considered a valid search incident to arrest by the framers of the U.S. Constitution.
Just two years ago, in Riley v. California, 573 U.S. __ (2014), the Supreme Court decided that a smart phone is not a container subject to search without a warrant under the search incident to arrest exception. In Riley, as in Birchfield, the Court found no historical guidance on the issue. Absent historical guidance, the Court applied a balancing test to determine the issue. This test balances the degree of intrusion the particular type of search imposes on the individual, against the governmental interests served by the search. In the case of smart phones, the Court held that the degree of intrusion substantially outweighs the governmental interests served by a warrantless search. The Riley Court therefore declared that a search warrant is required to justify the search of a smart phone, unless another recognized exception to the search warrant requirement applies, such as the probable cause and exigent circumstances exception. In Birchfield, the Court applied the same balancing test it applied in Riley to warrantless breath tests and blood draws. As regards breath tests, the Court found that the degree of intrusion is minimal (simply inserting a straw-like mouthpiece into the mouth and blowing) and the governmental interests served by the warrantless taking of breath samples is significant. In that balance, the Birchfield Court held that warrantless breath tests fit the search incident to arrest exception, as part of the reasonable search of a person incident to arrest. Under the same balancing test, however, the Court found a more significant degree of intrusion on individual interests in puncturing a person’s veins and extracting blood from his or her body, which, on balance, outweighs the government’s need to take blood samples without a search warrant. Therefore, breath tests do not require a warrant but blood tests do, unless another recognized exception to the requirement of a search warrant applies to the taking of a blood sample, such as exigent circumstances (which the States did not claim existed in the three consolidated cases).
The Birchfield Court went on to decide that “motorists cannot be deemed to consent to a blood test on pain of committing a criminal offense.” In Mr. Bernard’s case, he refused a warrantless breath test. Because the warrantless taking of a breath sample is a reasonable 4th Amendment seizure, incident to arrest, and because Bernard was lawfully arrested for OUI, the State was justified in demanding compliance with the duty to submit and in prosecuting Bernard for a criminal offense for refusing to comply. Bernard loses. As to Mr. Birchfield, on the other hand, it would have been an unreasonable search for police to take a blood sample from him without a warrant. When police threatened to prosecute him criminally for refusing to submit to a blood draw, they threatened to commit an unconstitutional search. The State cannot charge a person with a crime for refusing to submit to a search that he has a constitutional right to refuse, so the state court judgment, upholding Birchfield’s conviction, was reversed. Birchfield wins. Finally, as to Beylund, his case involved only an administrative suspension, not a criminal prosecution. The Court acknowledged that it is legitimate for the State to impose or threaten to impose a civil penalty, such as a license suspension, to coerce people to provide a blood sample for alcohol analysis, but the State cannot punish or threaten to punish a person criminally for refusing to consent. The evidence against Beylund in the administrative hearing included a blood sample taken from him after he was told it was a crime not to submit. The question is therefore whether Beylund’s consent was coerced by this threat or whether, when Beylund consented to the blood sample, his consent was voluntary. The state court erroneously assumed that the state could permissibly compel a warrantless blood test, as well as a warrantless breath test, as a search incident to arrest. The voluntariness of consent is to be determined on the totality of all circumstances. The Supreme Court therefore remanded Beylund’s case for determination whether the erroneous information he received, that a refusal would constitute a crime, rendered his consent involuntary (remember he was also given accurate information about a non-criminal license suspension for a refusal), and if so, whether the State should apply the remedy of exclusion in the circumstances.
IMPLICATIONS FOR MAINE
Maine also has an implied consent law for OUI, as well a specific implied consent provision for OUI-drugs. Under Maine’s implied consent law, when an officer has probable cause to believe a person has operated motor vehicle under the influence of intoxicants, the person “shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath or urine.” 29-A M.R.S. section 2521(1). If a “drug recognition expert” has probable cause to believe the person is “under the influence of a specific category of drug, a combination of specific categories of drugs or a combination of alcohol and one or more specific categories of drugs, that person must submit to a blood or urine test selected by the drug recognition expert to confirm that person’s category of drug use and determine the presence of the drug.” 29-A M.R.S. section 2525(1). If an officer with probable cause informs the person of the following consequences of refusing to submit to or failing to complete a test, a person who does not complete a test faces: (1) a license suspension of up to 6 years; (2) the admission, at his or her trial for operating under the influence, of the person’s failure or refusal; and (3) if the person is convicted of OUI, the use of the failure or refusal as an aggravating sentencing factor that, in addition to other penalties, will subject the person to a mandatory minimum jail sentence. 29-A M.R.S. section 2521(3).
Unlike the statutory schemes at issue in Birchfield, Maine does not have a statute making it a criminal offense to fail or refuse to submit to a test. Instead, Maine’s OUI statute, 29-A M.R.S. section 2411, imposes criminal penalties for failing to submit or complete a test. A person convicted of a first- offense OUI with a test refusal faces at least 96 hours in jail and a fine increase of at least another $100.00; for a 2d offense, at least an extra 5 days in jail and $200.00 more on the fine; for a 3rd offense at least an extra 10 days in jail and $300.00 more on the fine, etc. 29-A M.R.S. 2411(5). What are the implications of Birchfield for Maine OUI cases? Let’s consider several scenarios:
Arrested person takes an Intoxilizer test. Birchfield dictates that the test is admissible. The test is a reasonable search incident to arrest.
Arrested person refuses an Intoxilizer test. These are the circumstances Mr. Bernard was in. The refusal is admissible evidence and may be used to enhance the sentence in the criminal case, as well as to impose an administrative suspension. Because the State may obtain a breath test as a reasonable search incident to arrest, it acts within its authority to impose increased criminal sanctions and civil penalties when a person fails to comply.
Arrested person who is not read implied consent warnings submits to a warrantless blood draw for alcohol analysis. The question here is purely whether the person’s consent (uncontaminated by the potentially coercive effect of implied consent warnings) was voluntary under the totality of the circumstances. If the consent was voluntary, the test result is admissible. If the consent was not voluntary, the test is not admissible, unless the State can demonstrate that exigent circumstances justified the warrantless search and seizure.
Arrested person refuses to provide a blood sample for alcohol analysis after being read implied consent warnings. This is Mr. Birchfield’s situation. A person’s license may legitimately be suspended by the Secretary of State, in non-criminal, administrative proceedings for failing to submit, under 29-A M.R.S. section 2521(6). In Birchfield, the Supreme Court pointed out that it had already spoken approvingly of civil penalties for failure to comply with implied consent duties. However, Birchfield tells us the State cannot impose criminal penalties on a person for refusing to consent to a blood test, because the person has a right not to consent. Therefore, while the failure to submit is admissible in an administrative license suspension proceeding, the State is not allowed to impose additional jail time and fines for it in the OUI case. How about the admissibility of the refusal to submit to raise a guilty-mind inference in the person’s OUI trial? This question is not directly answered by Birchfield, but allowing the refusal of a blood draw into evidence at trial would severely undermine the person’s constitutional right not to consent to this search and seizure. In this scenario, the refusal should not be admissible for any reason in the criminal OUI case.
Arrested person submits to a warrantless blood draw after being read implied consent warnings: This is the circumstance Mr. Beylund was in. The test result is not admissible unless the State can establish that the consent was voluntary. If the consent was coerced by the threat of jail time and/or increased fines, it was not voluntary and the test should be inadmissible in an OUI trial. If, however, on the totality of the circumstances, it appears the person decided to consent based on the license suspension penalty alone, or independent of implied consent warnings altogether, consent would be voluntary and the test result would be admissible. If consent was not voluntary, the State would need to prove the existence of exigent circumstances to justify the warrantless search and seizure.
Arrested person submits to a blood test for drugs without implied consent warnings. This should be resolved the same as consent to a blood test for alcohol without implied consent warnings, discussed above.
Arrested person refuses to submit to a blood test for drugs after being read implied consent warnings. This should be resolved the same as the refusal of a blood test for alcohol, discussed above.
Arrested person submits to a blood test for drugs, but only after implied consent warnings are given. This situation is the same as that discussed above, regarding consent to a blood test for alcohol after implied consent warnings are given.
Arrested person submits to a urine test for drugs without implied consent warnings. Is the taking of a urine sample a valid search incident to arrest, or not? The answer depends on the degree of intrusion on individual interests involved in taking a urine sample, balanced against the degree to which taking such samples without a search warrant furthers important government interests. Taking a urine sample is different than taking a blood sample, in that no penetration is required into the person’s body to take a urine sample. On the other hand, it is more intrusive to take a urine sample than to take a breath sample. People have no particular privacy concerns in expelling breath, but they do have privacy concerns around excretory functions. Also, a breath sample blown into a breath analysis machine is analyzed solely for alcohol content, and the sample is used-up and gone as soon as the analysis is finished. A urine sample, like a blood sample, is available for testing for various compounds; a portion of the sample remains available to the State after analysis; and a urine sample is capable of revealing much more personal information than a breath sample blown into a breath analysis machine.
Again, searches incident to arrest are constitutionally reasonable every time a person is arrested, as part of the arrest in and of itself, without any need for suspicion. If the taking of a urine sample is a valid search incident to arrest, the State is allowed to require a person to submit to a urine sample anytime the person is arrested, no matter what the person is arrested for. In other words, just as an officer who arrests a person for disorderly conduct or theft is allowed to automatically search the person’s clothing and all containers found on the person, an officer who arrests a person for disorderly conduct or theft would also be justified in automatically requiring the person to provide a urine sample. As it stands, under Birchfield, an officer who arrests someone for disorderly conduct or theft can automatically require the person to blow a breath sample into an alcohol analysis machine. But there is no reason an officer would do that without at least having some suspicion that the person drove OUI– otherwise the results of the test would be valueless. On the other hand, requiring the person to submit to a urine sample could hold value for police who have arrested someone for disorderly conduct or theft– value for investigating other cases. For instance, an analysis of the person’s urine sample might reveal that the person is a user of illegal drugs. And, a urine sample contains the person’s DNA.
The routine collection of urine samples would allow the expansion of DNA databases to include samples taken from people arrested for even the most minor offenses; thereby furthering the government’s building of what the late Justice Scalia referred to, in his dissent in Maryland v. King, 569 U.S. __ , 133 S.Ct. 1958, 1989 (2013), as “a genetic panopticon.” In addition, a person may not be able to urinate upon demand, in which case an officer might need to continue to detain the person under arrest for a prolonged period, to allow time for the person to produce urine for a sample. On the other side of the equation, as relates to an OUI-drugs case, a urine sample is not particularly useful, versus a blood sample, in advancing the State’s interest. The presence of a drug or drug metabolite in a person’s urine is not indicative of immediate effects on the person’s faculties the way a drug or drug metabolite is when detected and quantified in a person’s blood. So, there are very good reasons why a search warrant should be required for the taking of a urine sample versus a breath sample. If a search warrant is required, the admissibility of a urinalysis result will turn on the same considerations that apply to a blood sample. If, on the other hand, a urine sample may automatically be obtained in a search incident to arrest, a urine sample may be taken and evidence derived from it may be used against the person, for the same reasons a breath sample may be taken incident to arrest and evidence derived from it may be used against the person.
Arrested person refuses to submit to a urine test upon demand. If the taking of a urine sample is valid as a search incident to arrest, warnings that the person will be subject to an increased jail sentence and increased fines for refusing have the same effect as a demand for a breath sample– test results are admissible and criminal penalties may be imposed for a refusal. If the taking of a urine sample is not automatically justified as a search incident to arrest, the State will not be allowed to impose increased criminal penalties for a refusal, any more than they are allowed to when they demand consent to a blood test.
PARTING THOUGHTS.
Finally, I always anticipate that every intrusion allowable under the law (and then some) will be carried out by the police, and the government more generally. Join me, and I guarantee you will never be disappointed. Now that breath testing has been declared a reasonable search incident to arrest, a breath test may be demanded every time a person is arrested, no matter what crime the person is arrested for. As discussed above, police ordinarily gain nothing by subjecting a person to a breath-alcohol test unless they suspect the person drove under the influence. But what if they get the idea of collecting DNA samples from Intoxilizer mouthpieces, as police have been known to do from cigarette butts? In fact, is it a stretch (no, it is not) to imagine mouthpieces being designed and evidence collection procedures put in place to best facilitate the collection of cells for DNA analysis? As discussed above, if urine sampling is determined to be reasonable as a search incident to arrest, there is great potential for that also to be used to gather DNA and other information about arrestees. Take no comfort from the fact that Birchfield was decided in the context of arrests for OUI. As Birchfield repeatedly states, the search incident to arrest exception is categorical. It does not require inquiry into particular facts and circumstances of the particular case the way the exigent circumstances exception does. If a search falls within the search incident to arrest exception, it may be carried out automatically, no matter what the person is arrested for. In Birchfield, the Supreme Court did its balancing test and decided, categorically, that an alcohol-breath test is reasonable as part of a search incident to arrest. The government interest side of equation was calculated with specific regard to the government’s interests in effective evidence gathering specific to impaired driving prosecutions. However, now that the balancing test has led to the categorical rule, breath-alcohol tests incident to arrest are not limited to arrests for impaired driving. And as we know, whatever evidence the government comes across while lawfully conducting a search and seizure is lawfully acquired evidence that may be used for any purpose– DNA analysis, for example. There is tremendous potential here for mischief. Such are the perils of leaving our protections from government intrusion to the decisions of a majority of the Supreme Court.
