Drivers now have the right to refuse warrantless DWI blood testing!!!!!

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Most states have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. A test is required to determine whether a driver’s BAC is over the legal limit. Prior to a recent U.S. Supreme Court decision, under Arkansas law, a driver could be required to take one or more tests, which include breath, blood and urine, without the necessity of a search warrant.

squad-carBecause drivers often refuse to take the test, Arkansas has passed what is known as the “implied consent law” which makes it a crime to refuse the test. The law imposes a criminal penalty on any motorist who refuses to undergo testing when there is sufficient reason to believe the motorist is violating the State’s drunk-driving laws. The dilemma faced by such person is real. If the person takes the test, the risk is a conviction for driving while intoxicated. If the person refuses the test, the risk is convictions for both driving while intoxicated and for the refusal to submit to the test. Many legal practitioners have long believed that those implied consent laws violate the right, guaranteed by the Fourth Amendment to the US Constitution, to be free from an unreasonable search and seizure.

In Birchfield v. North Dakota, the US Supreme Court decided to address the question of whether a state may criminally punish a motorist who refuses to submit to breath or blood tests for purposes of determining blood alcohol content. The matter of the enforceability of the implied consent laws came before the High Court in the two separate contexts of breath and blood.

The Court decided that a State may legally require a motorist to submit to a BREATH TEST, without the necessity of a search warrant, and to punish those motorists who refuse to take the breath test. Conversely, the Court decided that a State may not require a motorist to submit to a BLOOD TEST, without a search warrant, and thereafter punish those motorists who refuse to submit to the warrantless blood draw.

The Fourth Amendment is alive and well!!!

Submit any questions that you may have to Gary McDonald. gary@garymcdonald.net