You want blood? Get a warrant. Birchfield v. South Dakota

Posted by on July 12, 2016 in Uncategorized | 0 comments

You want blood? Get a warrant. Birchfield v. South Dakota

Breath, blood, and warrants…oh my!

The US Supremes drop another big decision related to DUIs: Birchfield v. South Dakota, 2016 WL 3434398.  The main question is whether DUI breath and blood testing violate the 4th Amendment against unlawful search and seizure when an officer does not obtain a warrant.  The quick answer is a warrant is not required for breath testing, but IS required for blood testing.  Even with implied consent laws*.

Birchfield was a consolidation of 3 cases:

  1. Birchfield: Birchfield consented to a roadside pre-arrest breath test, but after being advised about implied consent, he refused the blood test. No blood was drawn.
  2. Bernard: Police advised per implied consent, and Bernard refused the breath test. No blood was taken.
  3. Beylund: Police kind-of advised per implied consent, and Beylund consented to a blood test.

One burning question is whether the “search incident to a lawful arrest” makes a warrantless search of your breath or blood legal.  Or whether it violates the 4th Amendment.

The Court here says breath tests are not unreasonable searches.  It’s like “blowing up a party balloon.”  But holds differently with blood.  Even though blood draws can involve “little pain or risk[,]”, it’s still piercing the skin to extract part of yourself and body.  Breath testing is not invasive, where blood draws are.

Final tally, for those keeping scores:

  1. Birchfield: Chicken dinner for this dude. “Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.”
  2. Bernard: Lost.  Breath tests do not violate the 4th Amendment.
  3. Beylund: It’s a maybe. “[W]e leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.”

*In California, when you apply for your license, you sign into implied consent.  Meaning you are automatically consenting to a post-arrest chemical test if arrested for DUI.  While this case shows drawing your blood without a warrant violates your 4th Amendment protections against unlawful search and seizure…refusing can still carry punishments either by the DMV and in Court.  It just depends on how your case plays out.

It’s interesting for see how this case comes on the heels of the California case I blogged about discussing whether you can give implied consent when you’re unconscious.  Spoiler alert, you can’t.

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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci

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