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“What is wrong with a Breathalyzer test when it can save lots of lives…?”[1] “[A Breathalyzer] is about as uninvasive as a search can possibly be…”[2]

“Suppose you could set up a system where somebody could be reached within 10 or 15 minutes, and they would, in almost all circumstances, give a warrant.” “…[w]hat would be the problem with just relying on a system like that?”[3]

This past week, the United States Supreme Court (SCOTUS) came out fixated on those two points above during oral arguments[4] in Bernard v. Minnesota and its companion cases – Birchfield v. North Dakota and Beylund v. Levi. The Court hammered the Petitioner on the first point: what is so intrusive about a breath test? For the second issue, the Court repeatedly attacked Respondent: warrants do not take that long to obtain in today’s world, so why not get one?

Attacking Petitioner’s Arguments

Its early questioning, the High Court focused heavily on the invasiveness, or mainly the lack thereof, in breath testing. Charles A. Rothfeld, arguing on behalf of Petitioners, found himself against the ropes during the majority of his opening argument. He repeatedly reminded the justices “breath tests are searches” in an effort to divert their jabs. The justices continued to pounce on the subject and even began a line of questioning about preliminary breath tests, which are not even at issue in this case.

Initially, the court seemed disinterested in a traditional Fourth Amendment analysis. The court proffered the rare special needs exception to excuse a warrant when requesting a breath test. Under the special needs exception, the Court can hold there is such a compelling reason to do something that law enforcement does not need to get a warrant (i.e. the need to curb drunk driving and save lives is so compelling that it does not need to follow traditional Fourth Amendment analysis). Mr. Rothfeld attempted to persuade the Justices that such a line of reasoning runs afoul of the Unconstitutional Conditions Doctrine, which does not allow states to grant a benefit while taking away a constitutional right. The benefit is states granting driving privileges on the roadways within its boundaries and the constitutional right is being free from unreasonable searches and seizures.

Near the end of Rothfeld’s opening, Justice Kagan appeared to stray away from a non-traditional analysis and noted “I agree with you that you do need a recognized exception, and that we should not feel good about making up new exceptions willy-nilly.” But, then she followed with asking Rothfeld why doesn’t search incident to arrest apply here. Rothfeld responded well by noting the Court did not use search incident to arrest in Missouri v. McNeely, so It should not here either.

Pouncing on Respondent’s Arguments

As the Respondents took the podium, it appeared The Court signaled they were not going to let the other side off easy either. The barrage of questions continued as Thomas R. McCarthy initiated his arguments.

Chief Justice Roberts began the inquiry by drawing a comparison to searching a driver’s phone when suspecting them of texting and driving – which requires a warrant. Chief Justice Roberts noted “when you get a license. . . you give implied consent for the officer to look at the texts or whatever they can look at on your cell phone to make sure. . . a minute ago you were texting somebody while driving?” The Chief Justice appeared to be testing Mr. McCarthy to see how far the states could take implied consent. Mr. McCarthy responded by noting that evidence dissipates in drunk driving cases; and states are in a bind if they are only left with administrative penalties. These comments sparked an intense interest from the Court about why it is difficult to get a warrant in today’s age.

Justice Sotomayor quipped that states are not in a bind. They can get a warrant. There is going to be a delay anyway from the time it takes to transport an individual from the scene of the arrest to the hospital or police station for the evidentiary test, so why not attempt to get a warrant during that time? Respondents attempted to argue that it is not that easy in rural North Dakota. Justice Sotomayor was not impressed and argued “[s]o that excuses you from a constitutional requirement?” “[W]e give a pass to North Dakota because it doesn’t want to?”

Mr. McCarthy attempted to stress the practically of enforcing a search warrant for someone’s breath or blood in a DWI case by noting that states do not want to authorize a search over a driver’s objection. They do not want medical personnel and law enforcement forcing a search of blood or breath. Justice Sotomayor responded by saying the states can charge those people who refuse to abide by the warrant with obstruction, just like in other contexts. By this point McCarthy was in a corner. The Justices were feeding off of each other and piling on the inquiries about the readily availability of warrants. Justice Breyer desperately wanted someone to answer why from a practical perspective does it not make sense to get a warrant.

Because Respondents split up the time for its arguments, Kathryn Keena from the Dakota County Attorney’s Office in Minnesota stepped in and began arguing for Respondents. But, the repeated questions about the practicality of securing warrants did not stop. Ms. Keena tried to stress the fact that many rural areas only have one police officer on duty and it is just not practical to require them to get a warrant. But Ms. Keena could not come up with facts supporting her assertion; and this annoyed Justice Breyer. He stepped in and demanded “I’m not talking law. I’m talking practical facts.” Then he went on to offer examples of hypothetical practical facts to support the argument. But all Ms. Keena could respond with was “I don’t have those type of statistics to answer that question.”

As Ian H. Gershengorn took the podium for Respondents, the Court let him argue uninterrupted longer than anyone else in this case. They did that either because he was the most articulate counselor up to that point, or the Court wanted to give someone a break. Eventually the Court shifted Its questioning and focused primarily on breath testing. Blood testing seemed to already be decided by the majority of the Justices in favor of Petitioners. Eventually, Justice Breyer asked Mr. Gershengorn “[a]ssuming you win on the Breathalyzer, why would you win on the blood test? Mr. Gershengorn responded with “because there is no bright line on criminal sanctions, and because it’s critically important. . . where you need the drug evidence.” 

Petitioner’s Rebuttal

Mr. Rothfeld’s rebuttal argument went uninterrupted from start to finish. Sensing he was losing the breath test argument, he reminded the Court that the presumption favors warrants. Even though there is a difference between blood testing and breath testing, the Court treated them identically in Skinner and under the Fourth Amendment.

Most compelling, Mr. Rothfeld cited a NHTSA study that revealed the warrant process drives down test refusals and reduces confrontations between officers and drivers. “And as the Court said in Riley, the answer to a situation like this is simply get the warrant.”

What happens during oral arguments is not a perfect indication of how the Court will rule. But if this case does follow suit, then imposing criminal liability for refusing a blood test seems to be in jeopardy. The decision on doing the same for breath testing may be a close call. We likely will not have to wait long for a decision as most expect a decision by the end of June or July.

Robert H. Ambrose is a DWI defense lawyer and criminal defense attorney in Minneapolis and St. Paul, Minnesota. He was recently named a Rising Star by SuperLawyers; is a Top 40 Under 40 National Trial Lawyer; and is an Adjunct Professor at Mitchell Hamline School of Law. DUI lawyer St. Paul MN; Criminal Defense Lawyer Minnesota; and DUI lawyer Minneapolis.

[1] Justice Breyer’s question to Mr. Rothfeld arguing for Petitioners.

[2] Justice Kagan’s question to Mr. Rothfeld.

[3] Justice Kagan’s question to Mr. McCarthy arguing for Respondents.

[4] For an audio recording of the oral arguments click here; and a transcript here.

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