Last week, the Supreme Court ruled that police officers could administer warrantless Breathalyzer tests to people suspected of driving drunk.
The case, Birchfield v. North Dakota, effectively criminalizes the refusal to submit to a Breathalyzer test and affects laws in 11 states.
The outcome will most likely lead to an increase in drunken-driving convictions across the country, according to Derek Andrews, a defense attorney at Anelli Xavier.
The Fourth Amendment protects against unreasonable searches and seizures, though laws vary by state. Many lawyers openly encourage their clients to refuse a Breathalyzer test because prosecutors have a harder time landing convictions with less evidence. Depending on the probable cause, refusing to take a Breathalyzer test before an arrest has been made most likely won’t result in a license suspension, but in many states, like New York, refusing a Breathalyzer test after an arrest could lead to automatic license suspension.
With the Supreme Court’s decision, however, there could be “an increase in the number of chemical test results,” Andrews wrote in an email to Business Insider. People might be more likely to submit for fear of legal repercussions. Chemical tests can be done with a Breathalyzer, a blood draw, or even a urine sample.
To put it simply, more people submitting to Breathalyzer tests means that states and prosecutors will have greater evidence against them.
Andrews said he agreed that a state should be able to ask for a warrantless Breathalyzer test, and even a blood draw, but he took issue with the criminalization of refusing the tests.
“It is a fundamental premise of our criminal justice system that it is the government’s burden to prove beyond a reasonable doubt that someone is guilty of a crime, and it is the government’s duty to collect evidence and develop a case,” Andrews wrote. “It is not, however, a person’s duty to give that evidence to the government.”
Even with criminal penalties, however, some people will still refuse Breathalyzer tests.
“This country is simply going to have more criminals because the government has chosen to criminalize a refusal to provide (potentially) incriminating evidence to law enforcement,” Andrews wrote, adding, “There are other ways of combating DWI/DUI than convicting more people of crimes.”
The Supreme Court differentiated between Breathalyzer tests and blood tests in its ruling, arguing that blood draws are more intrusive and therefore may not be demanded by the state without a warrant.
The decision combined three cases but centered on an incident in North Dakota in which a man, after crashing his car, took a Breathalyzer test that found his blood-alcohol concentration at three times the legal limit. He didn’t, however, agree to a blood draw and was charged with a misdemeanor.
While Justice Sonia Sotomayor sided with the majority’s opinion on warrantless blood tests, she took issue with the court “establishing exceptions to the warrant requirement” and suggested that states should find other ways to combat drunken driving that “do not have the same impact on personal privacy” as allowing warrantless Breathalyzer tests.
Andrews, for his part, agrees.
“The Fourth Amendment is being attacked,” he wrote, “and our freedoms in this country are being whittled away.”