In December of last year, both Lawrence Taylor and I wrote about the United States Supreme Court’s announcement that it would review the criminalization of chemical test refusals following a DUI stop. On June 23rd, that decision was announced.
In a split decision, the Court held that states can punish a person for refusing a chemical breath tests following a DUI stop absent a warrant. States, on the other hand, cannot punish a person for refusing a chemical blood test absent a warrant.
In late 2015, the Hawaii Supreme Court issued a decision that decriminalized chemical test refusals in DUI cases. Prior to the decision, it was a petty misdemeanor to refuse a chemical test after a DUI arrest punishable by up to 30 days in jail and/or a $1,000 fine.
The Hawaii Supreme Court reasoned that criminalizing a chemical test refusal violated the 4th Amendment because we have the right against warrantless searches by law enforcement and the government cannot punish us for essentially invoking our 4th Amendment right. Furthermore, any consent to search (which is what a chemical test is; a search for alcohol in your breath or blood) cannot be voluntary if our only options are giving up a constitutional right or be punished.
Similar cases to that of Hawaii’s coming from North Dakota and Minnesota prompted the United States Supreme Court to take up the issue.
The decision affects thirteen states which make it a crime or increases penalties for to refusing to take a chemical test. Amongst those states is California where a prosecutor can allege that a person refused the chemical test in addition to the DUI charge in the criminal complaint. If the refusal is found to be true, a person can face additional penalties through the court case and a longer suspension of driving privileges through the DMV.
Writing for the majority, Justice Samuel Alito said that breath tests do not implicate “significant privacy concerns.” Alito went on to say that breath tests are different than blood tests which require the piercing of skin and leaves a biological sample in the government’s possession. Breath tests, on the other hand, only require a person to blow into machine.
Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.
So what does this mean for California?
Well, we’ll just have to wait and see exactly how this plays out. However, based on the Court’s decision, California courts and the California DMV can still punish people for refusing a chemical test after a DUI arrest, but only if the chemical test is a breath test. If the only chemical test that is available is a blood test after a DUI arrest, officers must obtain a warrant before forcing a person to submit to the blood test and a person cannot be punished for refusing that blood test absent that warrant.
This decision, unfortunately, is yet one more example of the erosion of our constitutional rights. The 4th Amendment and the warrant requirement was written to ensure that searches are not arbitrary capricious. Warrants ensure that searches are reasonable so as to protect the privacy of citizens. There mere arrest of a person does not make a search, be it a breath test or otherwise, per se reasonable.
Chisel, chip, and off falls our 4th Amendment right against unreasonable searches and seizures.