The U.S. Supreme Court’s decision from 2013 in Missouri v. McNeely appears to stand for the proposition that if the police have the ability to obtain a search warrant for a blood test after a driver has been stopped on suspicion of drunk driving, they must obtain that warrant.

In McNeely, the Court noted that merely because alcohol dissipates from the blood of the accused, this does not always create an exigent circumstance exception to the Fourth Amendment’s warrant requirement. Last week, the Court accepted a trio of cases that could expand on this ruling and determine if refusing a blood or breath test provides constitutional grounds for criminal prosecution.

The cases from North Dakota and Minnesota involve situations where refusing to take an alcohol test is itself a crime and allows the state to impose punishment identical to a conviction on a DUI/DWI charge.

One of the arguments against these state laws is that they force a driver to surrender their Fourth Amendment protection from warrantless searches in order to obtain the ability to drive with a state-issued license.

In one of the cases, the state court ruled that the search was lawful because it was incident to an arrest. However, it is arguable that this search is not constitutional in this context, so the state’s efforts to criminalize the refusal of an unconstitutional search should also be found unconstitutional. Court precedent prohibits the criminalization of refusal to consent to unconstitutional searches.

Conceptually it is difficult to see how these cases differ substantially from McNeely, with the demand for breath samples being only marginally less intrusive than a blood test.

If the warrantless search is not authorized by exigent circumstances, protection of evidence from destruction or officer safety and the implied consent statute is actually coercive, by conditioning the privilege of driving on surrender of Fourth Amendment rights, it is hard to see how criminal punishment for refusal is constitutional.

Oral arguments for the case are likely to be scheduled early next year and a decision should be released before the end of the courts term in June.

Source: scotusblog.com, “Court to rule on drunk-driving tests,” Lyle Denniston, December 11, 2015