Can you Refuse a Chemical Test After a DUI Stop
Despite the fact that thirteen states had statutes on the books that made it a crime for DUI suspects to refuse to take a drunk driving test, the Supreme Court ruled in Birchfield v. North Dakota that while the Fourth Amendment permits warrantless breath tests they do not permit warrantless blood tests. The issue at hand was whether an individual could be made to take a blood or breath test when suspected of drunk driving and whether the individual could be charged with a crime if he or she refused the test.
Birchfield v. North Dakota provided the Supreme Court with a “sequel” to its 2013 ruling in Missouri v. McNeely, which left the clear impression that if there is sufficient time, the police should obtain a warrant prior to testing a drunk driving suspect. In the Missouri case, the Court ruled that the natural dissipation of alcohol in the bloodstream fails to amount to an emergency situation which would allow a warrantless DUI test. In the state of North Dakota, state law barred a person from driving in the state if he or she refused a chemical test, whether blood, breath or urine.
Further, the state made refusing a DUI test a crime which could be prosecuted with the same punishment as a DUI conviction. In the state of Minnesota, state law also made it a crime to refuse a DUI blood draw once a suspect had been arrested for impaired driving. The North Dakota and Minnesota cases reviewed only dealt with DUI blood draws and DUI breath tests. The argument in the three appeals (one from North Dakota and two from Minnesota) asserted that decisions by state supreme courts conflict with the McNeely ruling.
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Fourth Amendment Violations?
The challengers stated the current laws in these states and others violate the Fourth Amendment’s protections against unreasonable searches and fail to follow the Supreme Court’s requirements regarding what police may do without a warrant. Further, argued the lawyers, if these laws were allowed to stand, there would be “greater constitutional protections to an arrestee’s pockets or handbag than to the arrestee’s body.”
The Birchfield Case
Danny Birchfield accidentally drove his car off the road in Morton County, North Dakota, in 2013. A North Dakota state trooper arrived, watching as Birchfield unsuccessfully attempted to back out of the ditch where his vehicle was stuck. The trooper stated he caught a strong odor of alcohol as he approached the car, then subsequently administered field sobriety tests to Birchfield—which Birchfield did poorly on as he was “unsteady on his feet.”
Birchfield then failed a breathalyzer test administered by the police officer but refused to submit to a blood test, pleading guilty to the misdemeanor charge while reserving his right to appeal. The state trooper said he advised Birchfield of his obligation under North Dakota law to undergo the blood test, telling him he would be subject to criminal punishment. The state Supreme Court in North Dakota said the requirement for a blood test was reasonable, given the state’s efforts to discourage impaired driving. The Birchfield case essentially deals with two primary issues:
- What constitutes “knowing and voluntary consent” for a DUI?
- Can knowing and voluntary consent be given by a driver who is being threatened with a loss of license if he or she refuses to consent to the blood draw and who is aware of the increased criminal penalties for refusal to submit to a blood draw?
If the driver being accused of DUI believes additional penalties imposed could be of a criminal nature, then the blood could potentially be suppressed under the theory that consent was not knowingly and voluntarily given. As an example, if the arresting police officer fails to expressly state to you that you will face only civil penalties for failing to refuse consent to the blood draw, only referencing “enhanced penalties,” the court may determine your consent was not properly given.
Are Breath and Blood Tests Intrusive?
The Supreme Court found that breath tests do not come with significant privacy concerns and that the physical intrusion is “almost negligible,” since a breath test does not require piercing the skin and entails a “minimum of inconvenience.” In short, the Supreme Court found that a breath test is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek. Further, breath tests (unlike DNA samples) yield only a BAC reading, leaving no biological sample of the individual in the possession of the government. Participation in a breath test is unlikely to make the embarrassment associated with a DUI arrest any worse, the Supreme Court stated, then said the same was not true for blood tests.
Blood Tests Leave the Subjects DNA in the Government’s Possession, While Breath Does Not
Blood tests require piercing the skin, and, in effect, “extract a part of the subject’s body.” This makes blood tests significantly more intrusive than a breath test, while also leaving a DNA sample from the individual behind—blood, which can have significantly more information extracted from the sample than from a breath sample. The Supreme Court acknowledged the states’ interest in preserving public highway safety and admitted that the states have a “compelling interest in creating deterrents to drunken driving.”
Sanctions have been increased across the United States for those who refuse to take a BAC test because, according to the individual states, the consequence of a license suspension was simply not adequate to persuade offenders to agree to a test. Therefore, some states made it a criminal offense to refuse a BAC test (North Dakota is one of those states).
Criminal Punishments for BAC Test Refusal
The Supreme Court also found that a motorist should not be criminally punished for refusing to submit to a blood test, based on legally implied consent to submit to them—that it is one thing to approve implied consent laws which impose civil penalties for refusal to comply to a BAC test, but another for the state to insist on an intrusive blood test, then impose criminal penalties when the individual refuses. Due process issues come into play because it is reasonable to assume that drivers are aware of the enhanced penalties for refusing a blood draw, therefore could feel coerced into consenting to a warrantless blood draw. Therefore, any person accused of DUI who had his or her blood drawn as a result of a DUI arrest should, together with their DUI attorney, challenge the results and admissibility of those results in court.
How Does Birchfield Affect Pennsylvania DUI Cases?
In the state of Pennsylvania—as in most states—DUI cases come down to evidence, with the central questions being what level of evidence the police must show to prove an individual was driving under the influence, and whether that evidence was legally obtained. Physical evidence in DUI cases typically include the results of a breath, blood or urine test to determine the driver’s blood alcohol content or BAC. A driver who has a BAC of 0.08 percent or higher is considered legally impaired, therefore unfit to drive.
Pennsylvania operates under the Implied Consent Law, which basically says that when you receive your driver’s license, you agree to submit to future chemical tests if asked by a police officer to do so when you are under suspicion of driving while impaired. If you refuse to take a breath, blood or urine test, then PennDOT will automatically suspend your driving privileges for one year—in addition to any suspension which could be imposed upon a DUI conviction. While this is a negative result of refusing a BAC test, it is not a criminal penalty. Further, in the state of Pennsylvania, refusal of a BAC test can be used as evidence against the individual during a DUI trial.
Following the Birchfield decision, a police officer must inform the driver that he or she has the right to refuse a blood test. If the police officer fails to provide this warning to the DUI suspect, then the results of the blood test will likely be excluded, therefore cannot be used as evidence against the individual in a DUI trial. This means if you were not informed of your right to refuse a blood test and you are forced into submitting to a blood test, your Pennsylvania DUI attorney may be able to have the charges reduced or dropped altogether.
What About Blood Draws for Marijuana DUI?
Driving while high is illegal in Pennsylvania, which prohibits driving with any amount over 1 nanogram per milliliter of THC or its metabolites in their blood. Unlike DWI for alcohol where your blood alcohol content must be established within two hours of driving, cannabinoid levels must only be shown in your bloodstream at the time of your arrest. Cannabinoids like THC bind with fatty cells, meaning they remain in your bloodstream far longer than the intoxicating effects. The lab must identify the drug then run more complex procedures to determine the levels in the blood. If you refuse a blood test to determine marijuana levels, you could have your driver’s license automatically suspended from one year to 18 months, and the prosecutor can move forward on your case based on General Impairment laws.
Our Pennsylvania DUI Lawyers Are There When You Need Us
At Ciccarelli Law Offices, our Pennsylvania DUI attorneys are here to help you following your DUI charges. We fight aggressively for individuals who have been accused of DUI and we work tirelessly to protect your future every step of the way.
We have successfully defended citizens throughout Pennsylvania who have been arrested and accused of DUI We have tried cases in the Chester County courts as well as in Exton, Kennett Square, Coatesville, Malvern, Chesterbrook, Phoenixville, Oxford, Honey Brook, Parkesburg, West Chester, Chester Springs, Chadds Ford, Landenberg, Paoli, and Philadelphia.