Three years ago, the Supreme Court held in an 8-1 decision that police officers could not dispense with the warrant requirement when seeking to draw blood from a suspected drunk driver despite the fact that alcohol might dissipate in the suspect’s blood in the intervening period. It’s a search, and there are not exigent circumstances in every drunk driving arrest.
Today, the Court went one step further in protecting the Fourth Amendment rights of suspected drunk drivers, holding that states cannot make it a crime for a motorist to refuse to submit to an invasive blood test after being lawfully arrested for driving while impaired. They can, however, criminalize the refusal to submit to a breath test, because a breath test is less intrusive upon the suspect’s privacy.
Justice Alito penned the opinion for the majority, which also included the Chief Justice and Justices Kennedy, Alito, Breyer, and Kagan.
While there are three separate opinions, the Court’s ruling is 6-2 as to the breath test issue — Justices Sotomayor and Ginsburg would hold that a warrant is required as to breath tests as well — and 7-1 as to blood tests, with Justice Thomas dissenting solo to state (as he did three years ago) that he’d always allow blood to be drawn from suspected drunk drivers without a warrant.
Today’s decisions do not affect the constitutionality of “implied consent” laws, which allow states to invalidate drivers licenses and impose civil penalties based on a driver’s refusal to submit to drunk driving tests. Nor do they disturb the Court’s 5-4 holding in a 2013 case that the police can do cheek swabs to test the DNA of anyone arrested for a “serious” crime.