Breath test is a search, but so what?

When I last wrote I discussed whether a warrant was needed for a breath test. I argued that a warrant was needed based on previous Supreme Court cases. I was happy that one judge agreed with me.

Well, a couple of weeks ago the Supreme Court decided North Dakota v. Birchfeld. They held that a breath test was a search, but that a warrant wasn’t needed. The Court basically said a breath test is not particularly intrusive. They concluded it can be done when someone is arrested as a search incident to that arrest. Again, one judge – Justice Sotomayor – agreed with me, that a warrant should be required.

The Court reaffirmed that a warrant is needed for a blood test. They also held that a state cannot make it a crime to refuse a blood test without a warrant because that would penalize people for asserting Fourth Amendment rights when the person insisted on a warrant. Although urine tests were not at issue, they will probably be treated the same way as blood tests, and a warrant will be required. I still think these rules should apply to breath tests, too.

The Court held that the state could still criminalize a breath test refusal because the person has no right to refuse a breath test.

State laws that impose criminal penalties (primarily jail) for refusing breath tests, and civil sanctions(such as license suspension) for refusing breath, blood or urine tests, are still lawful.

One good thing to come out of this case is Justice Sotomayor’s position on the need for warrants. Her dissent, together with her position in a few other recent cases, suggests she will be one of the champions of the Fourth Amendment and our collective right to be free from oppressive government searches.