Birchfield v. ND, along with 2 other companion cases, was decided by the US Supreme Court on June 23, 2016. This ruling will have a major impact on DUI cases in Georgia.

There were 2 other cases along with Birchfield: Bernard v. Minnesota and Beylund v. Levi . All of the cases involved the issue of warrantless chemical tests after a DUI arrest.

Both North Dakota and Minnesota have Implied Consent laws making a refusal to submit to a state chemical test a separate crime.

Birchfield was arrested for DUI in North Dakota, read Implied Consent and refused to take a blood test.

Bernard was arrested for DUI in Minnesota, read Implied Consent, and refused to take a breath test.

Beylund was arrested for DUI in Minnesota, read Implied Consent, and consented to a blood test; however, his license was administratively suspended, which he appealed on grounds that he was coerced into giving his blood because a refusal is considered a separate crime under North Dakota law.

The Court, per J. Alito, reviewed the history of searches after an arrest in this country, even BEFORE the 4th Amendment was enacted.

“Legal scholars agree that the legitimacy of body searches as an adjunct to arrest had been thoroughly established in colonial times, so much so that their constitutionality could not be doubted, even in 1789.”

Yet, as technology has evolved, there are certain types of searches that the founding fathers could not have envisioned. One of these were cell phones, which the Court addressed in the Riley case; another area, the Court says, is blood and breath test searches.

In looking at whether warrantless blood and breath searches in DUI cases violate the 4th Amendment, the Court examined the degree to which they (the searches) intrude on an individual’s privacy and the degree to which they are needed for the promotion of legitimate governmental interests.

The Court holds:

  1. The 4th Amendment permits warrantless breath tests incident to arrest. “Breath tests do not implicate significant privacy concerns. They do not require piercing of the skin; and the act of both inserting a mouthpiece into one’s mouth, as well as blowing an amount of air, is not intrusive. Also, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath; and participation in a breath test is not an experience which is likely to cause a great deal of embarrassment.” Hence, Bernard’s denial of his motion to suppress was affirmed.
  2. The 4th Amendment does NOT permit warrantless blood tests incident to an arrest. Blood tests are a different matter-it requires penetrating the skin; it is significantly more intrusive than blowing into a tube- and blood also places In law enforcement a sample that can be preserved. Hence, Birchfield’s conviction was reversed.
  3. Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. In other words, it appears that a State cannot make it a crime for a person to refuse a blood test incident arrest. One can assume that, since warrantless breath tests are permissible, then a suspect could be charged with obstruction should they refuse to blow into a breath testing machine. This case was remanded back to North Dakota.


Going Forward: The vast majority of test cases in DUIs in Georgia are breath tests. Unless the officer suspects a person of being under the influence of drugs, there really now would be no reason for the officer to seek a search warrant for blood; instead, they can simply place the suspect under arrest, then request a breath test at the jail. If the suspect refuses to blow into the machine, that would be a separate offense of obstruction.

The Implied Consent warning, in my opinion, becomes superfluous except the State may still want to keep the civil penalty of license suspension for one who refuses to take a state breath test, and the warning could be legislatively changed to make it a crime to refuse a breath test.

I anticipate that we will now see more attacks on articulable suspicion, probable cause, or on attacking the breath test on procedural or evidentiary grounds. Perhaps we will see another “source code” attack on the Intox 9000. I also believe more Defendants will simply refuse to blow into the machine, and take their chances with obstruction charges and with license suspension.


Mickey Roberts