Birchfield v. North Dakota

Birchfield v. North Dakota

579 U.S. _____ (2016)

Oral arguments are available at

Vote:   5 (Alito, Breyer, Kagan, Kennedy, and Roberts)

            3 (Ginsburg, Sotomayor, and Thomas)

Opinion of the Court: Alito

Opinion concurring in part and dissenting in part: Sotomayor

Opinion concurring in judgment in part and dissenting in part: Thomas





In response to growing numbers of suspected drunk drivers who refuse to submit to breath or blood sobriety tests, a number of states, including North Dakota and Minnesota, have passed laws making it a crime to decline such testing. Potential penalties range from a monetary fine to imprisonment for serial offenders.

 A number of individuals have challenged these laws claiming that criminal penalties for refusing to cooperate with warrantless testing violate the Fourth Amendment. The Supreme Court consolidated three such challenges for single ruling: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota Department of Transportation.

The three cases share similar sets of facts. In the first case, after Danny Birchfield failed a field sobriety test, a state trooper arrested him for drunk driving. The trooper advised Birchfield of his Miranda rights and informed him of North Dakota’s alcohol testing law. When the trooper transported Birchfield for a blood test, he refused to take it. In the second case, Minnesota police approached William Bernard while he attempted to free a truck that was stuck at a boat ramp. Bernard exhibited signs of being under the influence of alcohol. Police informed him about Minnesota’s testing law and then asked him to take a breath test. He refused. In the third appeal, Steve Beylund was arrested for drunk driving after North Dakota police observed his unsuccessful attempt to negotiate a turn into a driveway. After being informed of state testing laws, Beylund consented to a blood test, which showed that his blood had more than three times the legal limit of alcohol.

            Birchfield and Bernard appealed their convictions, claiming that mandatory warrantless blood and breath testing violates the Fourth Amendment. Beylund also appealed, arguing that the fear of criminal prosecution coerced him into complying with an unconstitutional, warrantless search. The state supreme courts in each of these cases upheld the state laws, and the three petitioners requested Supreme Court review. The three cases present a single issue: whether motorists lawfully arrested for drunk driving may be convicted of a crime for refusing to take a warrantless test measuring the alcohol in their bloodstream.


JUSTICE ALITO delivered the opinion of the Court.

[S]uccess for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. . . . We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth Amendment.

The Fourth Amendment 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.”

The Amendment thus prohibits “unreasonable searches,” and our cases establish that the taking of a blood sample or the administration of a breath test is a search. See Skinner v. Railway Labor Executives’ Assn. (1989); Schmerber v. California (1966). The question, then, is whether the warrantless searches at issue here were reasonable.

“[T]he text of the Fourth Amendment does not specify when a search warrant must be obtained.” Kentucky v. King (2011). But “this Court has inferred that a warrant must [usually] be secured.” This usual requirement, however, is subject to a number of exceptions.

We have previously had occasion to examine whether one such exception—for “exigent circumstances”—applies in drunk-driving investigations. The exigent circumstances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant. Michigan v. Tyler (1978). . . .

In Schmerber v. California, we held that drunk driving may present such an exigency. There, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries. The Court concluded that the officer “might reasonably have believed that he was confronted with an emergency” that left no time to seek a warrant because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops.” On the specific facts of that case, where time had already been lost taking the driver to the hospital and investigating the accident, the Court found no Fourth Amendment violation even though the warrantless blood draw took place over the driver’s objection.

More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely [2013], where the State of Missouri was seeking a per se rule that “whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC [blood alcohol concentration] evidence is inherently evanescent.” We disagreed, emphasizing that Schmerber had adopted a case-specific analysis depending on “all of the facts and circumstances of the particular case.” We refused to “depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State.”

While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the McNeely Court noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case-specific” fashion. One of these, as the McNeely opinion recognized, is the long-established rule that a warrantless search may be conducted incident to a lawful arrest. But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception “at issue in th[e] case,” namely, the exception for exigent circumstances. . . .

In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.

The search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation’s founding, it was recognized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee’s person. . . .

No historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. On the contrary, legal scholars agree that “the legitimacy of body searches as an adjunct to the arrest process had been thoroughly established in colonial times, so much so that their constitutionality in 1789 cannot be doubted.” . . .

When this Court first addressed the question, we too confirmed “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime.” Weeks v. United States (1914). . . .

. . . [I]n United States v. Robinson (1973), we . . . noted that the search-incident-to-arrest rule actually comprises “two distinct propositions”: “The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.” After a thorough review of the relevant common law history, we repudiated “case-by-case adjudication” of the question whether an arresting officer had the authority to carry out a search of the arrestee’s person. The permissibility of such searches, we held, does not depend on whether a search of a particular arrestee is likely to protect officer safety or evidence: “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Instead, the mere “fact of the lawful arrest” justifies “a full search of the person.” . . .

Our decision two Terms ago in Riley v. California (2014), reaffirmed “Robinson’s categorical rule” and explained how the rule should be applied in situations that could not have been envisioned when the Fourth Amendment was adopted. Riley concerned a search of data contained in the memory of a modern cell phone. “Absent more precise guidance from the founding era,” the Court wrote, “we generally determine whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ”

Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell phones, but here, as in Riley, the founding era does not provide any definitive guidance as to whether they should be allowed incident to arrest. Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine “the degree to which [they] intrud[e] upon an individual’s privacy and . . . the degree to which [they are] needed for the promotion of legitimate governmental interests.’ ”

We begin by considering the impact of breath and blood tests on individual privacy interests, and we will discuss each type of test in turn.

Years ago we said that breath tests do not “implicat[e] significant privacy concerns.” Skinner. That remains so today.

First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.” . . . The effort is no more demanding than blowing up a party balloon. . . .

In prior cases, we have upheld warrantless searches involving physical intrusions that were at least as significant as that entailed in the administration of a breath test. Just recently we described the process of collecting a DNA sample by rubbing a swab on the inside of a person’s cheek as a “negligible” intrusion. Maryland v. King (2013). We have also upheld scraping underneath a suspect’s fingernails to find evidence of a crime, calling that a “very limited intrusion.” Cupp v. Murphy (1973). A breath test is no more intrusive than either of these procedures.

Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath. . . . A breath test . . . results in a BAC reading on a machine, nothing more. No sample of anything is left in the possession of the police.

Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. . . .

For all these reasons, we reiterate what we said in Skinner: A breath test does not “implicat[e] significant privacy concerns.”

Blood tests are a different matter. They “require piercing the skin” and extract a part of the subject’s body. And while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. . . .

In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.

Having assessed the impact of breath and blood testing on privacy interests, we now look to the States’ asserted need to obtain BAC readings for persons arrested for drunk driving.

The States and the Federal Government have a “paramount interest . . . in preserving the safety of . . . public highways.” Mackey v. Montrym (1979). . . .

Alcohol consumption is a leading cause of traffic fatalities and injuries. . . . The most recent data report a total of 9,967 such fatalities in 2014—on average, one death every 53 minutes. Our cases have long recognized the “carnage” and “slaughter” caused by drunk drivers. . . .

. . . After pegging inebriation to a specific level of blood alcohol, States passed implied consent laws to induce motorists to submit to BAC testing. While these laws originally provided that refusal to submit could result in the loss of the privilege of driving and the use of evidence of refusal in a drunk-driving prosecution, more recently States and the Federal Government have concluded that these consequences are insufficient. In particular, license suspension alone is unlikely to persuade the most dangerous offenders, such as those who drive with a BAC significantly above the current limit of 0.08% and recidivists, to agree to a test that would lead to severe criminal sanctions. The laws at issue in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to provide an incentive to cooperate in such cases, and we conclude that they serve a very important function.

 Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.

We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

Neither respondents nor their amici dispute the effectiveness of breath tests in measuring BAC. Breath tests have been in common use for many years. Their results are admissible in court and are widely credited by juries, and respondents do not dispute their accuracy or utility. What, then, is the justification for warrantless blood tests?

One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver’s ability to operate a car safely. A breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not. . . .

It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

A breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing, and it may be prosecuted as such. And again, a warrant for a blood test may be sought.

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.

Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’ alternative argument that such tests are justified based on the driver’s legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents and that sometimes consent to a search need not be express but may be fairly inferred from context. Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.

It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

. . . [R]easonableness is always the touchstone of Fourth Amendment analysis, see Brigham City v. Stuart. And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

Our remaining task is to apply our legal conclusions to the three cases before us.

Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. . . . [W]e conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.

Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not contested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.

Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission. . . . The North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be “determined from the totality of all the circumstances,” we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.

It is so ordered.

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part.

The Court today considers three consolidated cases. I join the majority’s disposition of Birchfield v. North Dakota and Beylund v. Levi in which the Court holds that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement does not permit warrantless blood tests. But I dissent from the Court’s disposition of Bernard v. Minnesota in which the Court holds that the same exception permits warrantless breath tests. Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver’s alcohol level, the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case.

As the Court recognizes, the proper disposition of this case turns on whether the Fourth Amendment guarantees a right not to be subjected to a warrantless breath test after being arrested. . . .

To condense [the relevant] doctrinal considerations into a straightforward rule, the question is whether, in light of the individual’s privacy, a “legitimate governmental interest” justifies warrantless searches—and, if so, whether that governmental interest is adequately addressed by a case-by-case exception or requires by its nature a categorical exception to the warrant requirement. . . .

Beginning with the governmental interests, there can be no dispute that States must have tools to combat drunk driving. But neither the States nor the Court has demonstrated that “obtaining a warrant” in cases not already covered by the exigent circumstances exception “is likely to frustrate the governmental purpose[s] behind [this] search.” Camara [v. Municipal Court (1967)]. . . .

First, the Court cites the governmental interest in protecting the public from drunk drivers. But it is critical to note that once a person is stopped for drunk driving and arrested, he no longer poses an immediate threat to the public. Because the person is already in custody prior to the administration of the breath test, there can be no serious claim that the time it takes to obtain a warrant would increase the danger that drunk driver poses to fellow citizens.

Second, the Court cites the governmental interest in preventing the destruction or loss of evidence. But neither the Court nor the States identify any practical reasons why obtaining a warrant after making an arrest and before conducting a breath test compromises the quality of the evidence obtained. To the contrary, the delays inherent in administering reliable breath tests generally provide ample time to obtain a warrant.

There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery. Transporting the motorist to the equipment site is not the only potential delay in the process, however. Officers must also observe the subject for 15 to 20 minutes to ensure that “residual mouth alcohol,” which can inflate results and expose the test to an evidentiary challenge at trial, has dissipated and that the subject has not inserted any food or drink into his mouth. In many States, including Minnesota, officers must then give the motorist a window of time within which to contact an attorney before administering a test. Finally, if a breath test machine is not already active, the police officer must set it up. North Dakota’s Intoxilyzer 8000 machine can take as long as 30 minutes to “warm-up.”

Because of these necessary steps, the standard breath test is conducted well after an arrest is effectuated. The Minnesota Court of Appeals has explained that nearly all breath tests “involve a time lag of 45 minutes to two hours.”

During this built-in window, police can seek warrants. That is particularly true in light of “advances” in technology that now permit “the more expeditious processing of warrant applications.” . . .

Third, the Court and the States cite a governmental interest in minimizing the costs of gathering evidence of drunk driving. But neither has demonstrated that requiring police to obtain warrants for breath tests would impose a sufficiently significant burden on state resources to justify the elimination of the Fourth warrant requirement. . . .

Fourth, the Court alludes to the need to collect evidence conveniently. But mere convenience in investigating drunk driving cannot itself justify an exception to the warrant requirement. . . .

Finally, as a general matter, the States have ample tools to force compliance with lawfully obtained warrants. This Court has never cast doubt on the States’ ability to impose criminal penalties for obstructing a search authorized by a lawfully obtained warrant. No resort to violent compliance would be necessary to compel a test. If a police officer obtains a warrant to conduct a breath test, citizens can be subjected to serious penalties for obstruction of justice if they decline to cooperate with the test. . . .

As shown, because there are so many circumstances in which obtaining a warrant will not delay the administration of a breath test or otherwise compromise any governmental interest cited by the States, it should be clear that allowing a categorical exception to the warrant requirement is a “considerable overgeneralization.”. . . [A]ny unusual issues that do arise can “better [be] addressed through consideration of case-specific exceptions to the warrant requirement.”

. . . I fear that if the Court continues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion.


JUSTICE THOMAS, concurring in judgment in part and dissenting in part.

The compromise the Court reaches today is not a good one. . . .

Today’s decision chips away at a well-established exception to the warrant requirement. Until recently, we have admonished that “[a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” United States v. Robinson (1973). Under our precedents, a search incident to lawful arrest “require[d] no additional justification.” Not until the recent decision in Riley v. California (2014), did the Court begin to retreat from this categorical approach . . .

The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in [Missouri v. McNeely (2013)]. Under that approach, both warrantless breath and blood tests are constitutional because “the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.”

The Court in McNeely rejected that bright-line rule and instead adopted a totality-of-the-circumstances test examining whether the facts of a particular case presented exigent circumstances justifying a warrantless search. The Court ruled that “the natural dissipation of alcohol in the blood” could not “categorically” create an “exigency” in every case. . . .

The Court was wrong in McNeely, and today’s compromise is perhaps an inevitable consequence of that error. Both searches contemplated by the state laws at issue in these cases would be constitutional under the exigent-circumstances exception to the warrant requirement. I respectfully concur in the judgment in part and dissent in part.