Last week, Laura Law wrote a blog post about a constitutional challenge to new DUI laws in North Dakota and Minnesota. There are two cases, Birchfield v. North Dakota and Bernard v. Minnesota, which present the questions posed by these changes. Under the new laws, a person who is stopped on suspicion of impaired driving and refuses to take a breath, urine, or blood test faces criminal penalties. Police officers are not required to get a warrant for any of these tests. Such a law raises serious concerns about our 4^th Amendment and 5^th Amendment rights.

The Fifth Amendment right against self-incrimination is one of the bedrocks of the Constitution, and these laws seek to criminalize that right. In these cases before the Supreme Court, the States justify criminalizing refusal as a public needs exception. However, implied consent laws already force the motorist to suffer severe consequences for refusing a breathalyzer – for example, losing their license for up to three years – and the fact of their refusal is allowed to be used as evidence in their DUI trial. What these forced consent states are really saying is that a person simply arrested for DUI is guilty. Think about the ramifications of these State laws: Let’s say an officer arrests a motorist for DUI. There are existing laws on the books that allow States to arrest and gain a conviction for DUI without a chemical test based merely on the officer’s observations and/or performance of field sobriety tests.  See 625 ILCS 11-501(A)(2). In Illinois, after an arrest for an (A)(2) the officer can then request a chemical test and must advise the motorist of the consequences of refusal or failure. This structure already provides enough “punishment” for refusal without the necessity of criminalizing a refusal.

The 4^th Amendment guarantees the right to be secure in one’s person and property. North Dakota’s and Minnesota’s statutes create implied consent, which essentially means that by choosing to drive within the state you are consenting to requests for breath, urine, or blood test if suspected of driving while intoxicated. The Petitioner makes strong arguments. First, he points out that this law allows police officers to administer a blood, urine, or breath test simply with probable cause and criminalizes a person’s refusal to consent. Courts have long held that a warrantless search or seizure is per se unreasonable, and therefore unconstitutional, unless it meets certain exceptions. None of those exceptions are present here. The Supreme Court of North Dakota ignored this argument entirely and called the criminal penalties “reasonable because it is an efficient tool in discouraging drunk driving.” The Supreme Court could be right; maybe the public will be discouraged from drunk driving because of this new law. However, that is not the standard the Court should use. The practical effects of a law does not negate its unconstitutionality.

Petitioner also points out that the Supreme Court of North Dakota’s ruling conflicts with many other courts across the nation. Idaho, for example, upheld a challenge to a similar law stating that “Inherent in the requirement that consent be voluntary is the right of the person to withdraw that consent.” The Supreme Courts of Nevada, South Dakota, and Delaware made similar findings, as well as the appellate courts of Kansas and Texas.

Should you be forced to submit to a blood draw based on a police officer’s suspicions? Are you actually consenting to a breath test if the act of refusal constitutes a crime? The answer to both questions is no. Laura Law will follow these cases as the Supreme Court makes its decision. If you have been charged with a DUI or are unsure of your rights when pulled over, contact us here at Laura Law.

** Click each case to listen to Supreme Court Oral Arguments on Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi.