U.S. Supreme Court

SCOTUS considers laws that make it a crime to refuse blood-alcohol tests

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During oral arguments on Wednesday, Justice Samuel A. Alito Jr. appeared to be firmly on the side of states that make it a crime for drivers to refuse to submit to warrantless blood-alcohol tests.

But several U.S. Supreme Court justices questioned why officers couldn’t get a warrant before conducting the tests. USA Today reports that a majority appeared to side with challengers who claim a Fourth Amendment violation. But the Washington Post wasn’t so sure.

“The Supreme Court on Wednesday appeared first to be on one side of the question, then on the other,” the Post reports. Several justices indicated they would be more likely to allow a criminal penalty for refusing a Breathalyzer than for blood or urine tests.

Alito countered the Fourth Amendment argument. “One way of looking at what the state is doing is not to criminalize the assertion of a constitutional right, but to criminalize reneging on a bargain,” Alito said. “And the bargain was, we give you a license to drive, and in exchange for that, you consent . . . to a blood-alcohol test under certain circumstances. And if you renege on that bargain, then that’s what’s criminalized.”

One issue at oral arguments was how quickly police could obtain a warrant, the National Law Journal (sub. req.) reports. It’s not always a fast process, said Principal Deputy Solicitor General Ian Gershengorn in his argument supporting the states.

“In the real world, I think it’s critically important that this court not assume that warrants are available 24/7,” he said. “That is not the case in the real world.”

The court is considering three consolidated challenges by drivers in Minnesota and North Dakota. They are among a dozen states that make it a crime for drivers to refuse breath or blood tests. The others are Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia. (A 13th state, Kansas, also made it a crime, but the Kansas Supreme Court struck down the law in February, according to this story by the Kansas City Star.)

The U.S. Supreme Court ruled in 2013 that people suspected of drunken driving can’t automatically be subjected to blood tests without a warrant. The drivers challenging the Minnesota and North Dakota laws cite that case in arguing states cannot make it a crime to refuse such tests.

The new cases are Birchfield v. North Dakota, Beylund v. North Dakota and Bernard v. Minnesota.

Updated on May 8 to state that the law in Kansas was struck down by the state supreme court.

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