Aug 16, 2016
OVI or DUI breath test refusal = crime?
OVI or DUI Breath Test Refusal CrimeCan you be charged with a separate criminal offense for declining to provide a sample of your breath or blood upon an officer’s request?

On June 23, 2016, The United States Supreme Court issued a decision stemming from three separate cases (Read the cases here: Birchfield v. North DakotaBernard v. MinnesotaBeylund v. Levi [1]) that it consolidated regarding whether a person’s refusal to submit to a warrantless request to provide a breath test or a blood test could be charged as criminal behavior.  Simply put, aside from being charged with operating your vehicle under the influence, can you also be charged with a separate criminal offense for declining to provide a sample of your breath or blood upon an officer’s request.  The answer, apparently, is sometimes.

So first, a little history.  The fourth amendment to the U.S. Constitution keeps all of us safe from unreasonable searches and seizures unless they are based upon a warrant issued by a judge with probable cause.  Of course, there are exceptions.  The most meaningful and pertinent exception in our current analysis is the “search subject to lawful arrest.”  This is ancient doctrine, predating the founding of our great country, and in short it allows your person to be searched if you are lawfully arrested without the need for a warrant.  The question has extended now well beyond the vision of the founders of our constitution, particularly regarding things such as searching through the cell phone in someone’s pocket, or more applicable here, searching through someone’s bodily substances for the presence of alcohol.   

In deciding this issue, the Supreme Court applies an analysis that weighs the governments legitimate interest in the evidence versus your individual privacy interest.  The governments legitimate interest, according to the Court, is keeping the public roadways safe for other drivers.  The individuals interest is obviously one of privacy, and according to the Court that privacy is greater when a bodily substance such as blood is being extracted;(it must be drawn from the veins, it can be preserved, and it can show evidence of many things other than just a blood alcohol content) than when only a breath sample is being taken.  A breath sample, in the Court’s eyes, can only provide a blood alcohol content, is not preservable, and is minimally intrusive as you are only required to blow into a mouth piece.

The second recognized exception to the need for a warrant is the existence of “exigent circumstances,” which, for example, would allow the officer to act immediately because if not the harm would already be done.  The example relevant here would be that when a person stops drinking their blood alcohol content begins to diminish.  Exigent circumstances would allow the officer to force the blood draw on the spot to prevent the evidence from slipping away.  This exception has already been addressed by the court in Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696, 81 U.S.L.W. 4250 (2013).  McNeely stated that this exception may apply, but not always, and must be decided on a case by case basis.

As this exception was dealt with previously, the court limited its decision on the search subject to a lawful arrest.  Ultimately, the Court held that you can be charged criminally for failing to provide a breath sample upon request by an officer upon lawful arrest as the governments interest in keeping the roads safe outweighs your interest in keeping your breath sample in your lungs.  However, you may still refuse, without fear of criminal penalties, a request to take your blood without a warrant.


[1] These cases were all consolidated under Birchfield v. North Dakota 136 S.Ct. 2160

Written content provided by attorney David M. Gast