Is it a crime to refuse to submit to having your blood drawn without a search warrant if you are suspected of drunk driving? In some states, yes. But should it be?
The Hawaiian Supreme Court has held that a blood test was invalid in a DUI case where the defendant had consented because it was coerced: his consent consent was obtained by his fear that he would be criminally prosecuted if he did not consent. See State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent. Two weeks earlier, a Minnesota Appellate Court had decided that a citizen cannot be convicted of refusing to consent to blood-alcohol testing absent a search warrant. See Is It a Crime to Refuse to Give Blood in a DUI Arrest?.
Confronted with the conflict among various states as to whether a DUI suspect could be criminally punished for refusing to incriminate himself with breath or blood testing, the United States Supreme Court recently decided to review the issue. See U.S. Supreme Court to Decide: Can Refusing a Breath/Blood Test Be a Crime?
Yesterday, the Supreme Court heard arguments on the issue. As the following excerpted article from The Washington Post indicates, the justices were dubious about this latest "DUI Exception to the Constitution":
High Court Expresses Doubts About Drunken Driving Laws
Wash., D.C. April 20 — The Supreme Court is expressing doubts about laws in at least a dozen states that make it a crime for people suspected of drunken driving to refuse to take alcohol tests.
The justices heard arguments Wednesday in three cases challenging North Dakota and Minnesota laws that criminalize a refusal to test for alcohol in a driver’s blood, breath or urine if police have not first obtained a search warrant.
Drivers prosecuted under those laws claim they violate the Constitution’s ban on unreasonable searches and seizures. State supreme courts in Minnesota and North Dakota upheld the laws.
The justices pressed lawyers representing the states on why they can’t simply require police to get a warrant every time police want a driver to take an alcohol test. Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant over the phone in Wyoming and 15 minutes to get one in Montana.
Thomas McCarthy, the lawyer representing North Dakota, said the state “strikes a bargain” with drivers by making consent to alcohol tests a condition for the privilege of driving on state roads.
But Justice Anthony Kennedy said the states are asking for “an extraordinary exception” by making it a crime for people to assert their constitutional rights. He expressed frustration when McCarthy refused to answer repeated questions about why expedited warrants wouldn’t serve the state just as well….
Although it will undoubtedly be some time before a decision is rendered, it appears that the Court may finally be willing to abandon the "DUI exception" in this situation and recognize that criminally punishing a citizen for refusing to submit to testing — or to submit to testing in the face of criminal punishment — is a violation of the Constitution. Although I believe it is likely the Court will uphold criminalization for refusing to take a breath test, I’m hopeful they will see that punishing for refusing a blood draw without a warrant is a basic violation of a citizen’s constitutional right.