The Great Dichotomy of Birchfield v. North Dakota

Posted on December 10, 2018 in Uncategorized


There are various aspects to the United States Supreme Court's recent holding in Birchfield v. North Dakota (2016) ___ U.S. ___ (Docket No. 14-1468) that trial and appellate courts will have to address in future cases. A couple of them derive from the following two paragraphs in the opinion:

"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, [cites omitted], and it may be prosecuted as such. And again, a warrant for a blood test may be sought."

First, Birchfield makes it clear that "implied consent" statutes may not be constitutionally relied upon for lawful consent under the Fourth Amendment when dealing with an unconscious person. A search warrant is mandated for unconscious individuals unless some other exception to the warrant requirement is applicable. So this portion of implied consent statutes, such as California Vehicle Code § 23612(a)(5)1, must be declared unconstitutional.

Secondly, the Birchfield Court recognizes that the failure to provide an adequate breath sample may be the result of either a deliberate refusal or a physical inability due to injury or profound intoxication. Breath-alcohol testing requires a sustained and continuous blow of sufficient strength and duration so that alveolar (i.e., deep lung) breath is obtained for analysis. It is not at all uncommon for officers to beseech arrestees to blow harder, often yelling at them to "blow, blow, blow!" In the absence of evidence beyond a reasonable doubt that a defendant was deliberately refusing to provide a breath sample, a criminal sanction or conviction for refusing may not be sustained. When arrestees fail to provide an adequate breath sample they are usually admonished that they must submit to a blood draw under the implied consent law. Prior to Birchfield, prosecutors would then typically rely upon a subsequent blood draw refusal to prove a willful chemical test refusal. They can no longer do that because one may lawfully refuse a blood draw in the absence of a warrant. The dilemma for prosecutors will be in trying to prove beyond a reasonable doubt that a defendant was deliberately thwarting the breath testing—the more they argue that he or she was drunk, the more difficult it becomes to argue that he or she was not so "profoundly intoxicated" as to be unable to provide an adequate breath sample.

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