One of our Law Clerks, Brandon Hellwig, from our Syracuse office, looks into a DWI issue making its way to the Supreme Court.

The Fourth Amendment to the U.S Constitution provides:

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

This Amendment is important as it provides United States citizens a crucial protection from government intrusion by bestowing on them a fundamental right of privacy. The founders of our nation had lived under the rule of a government that could at any moment, burst into their homes, search them without warning, and arrest them for no cause at all. Our nation’s citizens, the founders decided, would not live under these types of intrusions.

As a result of the Fourth Amendment, the government needs probable cause in order to search or arrest someone. Normally, the probable cause requirement is satisfied by a warrant, reviewed and issued by a judge. However in terms of searches for evidence, the Supreme Court over the years has recognized certain exceptions to the warrant requirement.

Three current cases before the Supreme Court: Bernard v. Minnesota; Birchfield v. North Dakota; and Beylund v. Levi involve States attempting to use Fourth Amendment warrant exceptions to justify their laws, which allow charging individuals with a crime who refuse to submit to chemical testing of their blood or breath. Both sides to these cases presented oral arguments to the Supreme Court on Wednesday April 20, 2016.


The three cases mentioned above all involve the same constitutional issue, whether states can, in the absence of a warrant, make it a crime for a driver to refuse to take a blood or breath test. The drivers in these cases argue that this practice is not constitutional. The cases originate in North Dakota and Minnesota. In both states, drivers were charged with a crime for refusing to submit to either a breath or blood test designed to determine their blood-alcohol-content. Courts in both Minnesota and North Dakota argue that this practice is constitutional, and in doing so rely essentially on three different rationales. Minnesota relies on a recognized Fourth Amendment warrant exception called “search incident to arrest”, while North Dakota insists these blood and breath tests do not constitute a search at all because drivers are deemed to consent to them. Lastly, as a default, both states argue that the Fourth Amendment only prohibits unreasonable searches and seizures, and that the blood and breath testing in these cases is in fact reasonable. To understand what is at stake in these cases it is necessary to explore these arguments in turn.

Search Incident To Arrest Argument

Although best practice for police when conducting a search or seizure is to obtain a judicial warrant, there are situations where this would not be practical. As a result over the years the Supreme Court has recognized certain situations where the police may conduct searches and make arrests without a warrant. One such exception is a “search incident to arrest”. Under the search incident to arrest warrant exception, the police may search the “wingspan” of someone who is being lawfully arrested. The “wingspan” is the area where the individual has immediate access too, and where a weapon or evidence of the suspected crime could be hidden.

Minnesota argues that the exception allows police officers to conduct a full-body search of an arrestee, which would include requiring the arrestee to take a breath test without a warrant. And if the arrestee can be required to take the breath test without a warrant, then the state asserts it can also make it a crime to refuse the test.[2] To back-up its argument Minnesota relies on the forty-year old Supreme Court case United States v. Robinson. In Robinson, the Court ruled that a search incident to arrest is not limited to a frisk of the subjects clothing, or removal of weapons.[3] Minnesota interprets the ruling in Robinson as allowing both a warrantless breath test for a suspected drunk driver and criminal charges for refusing to take the breath test.[4]

The drivers in these cases (all of which are represented by the same attorney) argue that the search incident to arrest exception does not apply here. The drivers assert that the search incident to arrest exception is available for only two reasons, to protect the arresting officers and guard against destruction of evidence, with neither reason applying to warrantless breath or blood testing.[5] The drivers state that once an individual suspected of drunk driving is arrested, their breath does not pose a threat to officer safety, and furthermore that an individual cannot destroy the alcohol content in their blood.[6] The drivers point to a more recent Supreme Court decision to back-up their argument. In Missouri v. McNeely, the Court rejected a proposed rule that would allow blood tests of suspected drunk drivers without a warrant under an exception for “exigent circumstances”.[7]

The Tests Are Not A Search Argument

As mentioned above the Fourth Amendment protects against unreasonable searches. North Dakota is arguing in defense of its laws, that tests for the presence of alcohol in a driver’s blood are not searches at all. Instead North Dakota asserts that a driver on the state’s roads is deemed to have consented to the blood test; and the law being challenged merely criminalizes the refusal to take that test.

In response to North Dakota’s assertions, the drivers argue that states can’t make a benefit like driving contingent on giving up a constitutional right. There is no reason, they say, to believe that drivers “understand that they have granted consent to be tested simply by virtue of driving in North Dakota”.[8] The drivers also point out that in a state like North Dakota, where there is virtually no public transit, driving is an essential part of life, bordering on a fundamental right.

In regards to this line of argument the federal government has chimed in, submitting a brief in support of Minnesota and North Dakota. The feds and North Dakota argue that there is no bright-line rule that prohibits the government from ever putting any conditions on the exercise of constitutional rights. The federal government asserts that in this situation the test for constitutionality is “whether the government is asking someone to surrender a constitutional right to obtain a benefit that has little or no relationship to the condition imposed”[9]. Thus the government argues, in this case the drivers cannot rightfully say that a test for driver intoxication has no relationship to driving privileges.

Reasonableness Argument

As previously mentioned the Fourth Amendment prohibits unreasonable searches. Thus both North Dakota and Minnesota each assert that the blood and breath tests involved in these cases are reasonable. The States argue, reasonableness is determined by weighing the government’s interests versus the level of intrusion into the privacy of the individual being searched. Minnesota in particular asserts that the state’s interest in public safety on its’ roadways substantially outweighs what it characterizes as “the minimal” intrusiveness of a blood or breath test. Furthermore the States argue that a driver, by nature of driving on a public roadway has a diminished expectation of privacy.[10]


The Supreme Court Justices will issue a written opinion in the coming weeks, in which they will address the validity of both sides’ arguments. No matter which side ultimately wins the argument in these cases, the result will have important ramifications for our criminal justice system. Should the states prevail, more states may enact laws like North Dakota or Minnesota. Should the drivers prevail, states with anti-refusal laws like North Dakota or Minnesota will be forced to either repeal those laws, or issue warrants whenever a driver’s blood alcohol content is to be tested.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.

[3] United States v. Robinson, 414 U.S. 218 (1973)
[5] Id.
[6] Id.
[7] Missouri v. McNeely, 133 S.Ct 1552 (2013)
[9] Id.
[10] Id.