United States Supreme Court Rules That the 4th Amendment Permits Warrantless Breath Tests Incident to Arrest For DUI But Not For Warrantless Blood Tests

Posted by Karen Bird | Sep 14, 2016 | 0 Comments


The US Supreme Court reviewed three cases:  Birchfield (North Dakota), Beylund (North Dakota) and Bernard (Minnesota).  In each case, the driver was arrested for DUI in a state which had law requiring a driver suspected of DUI to undergo blood alcohol testing.  Refusal to submit to testing in those states resulted in criminal punishment. 

The Court held that blood tests are more intrusive than breath tests.  Not only is the test physically intrusive and painful, the blood sample obtained contains far more information than just the blood alcohol content.  The Intrusiveness of that test raises the issue of whether the requirement to undergo such test is “unreasonable” under the 4th amendment.  Even when the state has “implied consent” laws requiring that any licensed driver be deemed to have consented to a blood alcohol test if he is arrested for suspicion of DUI, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

It is yet unknown how Birchfield will impact California law since there is no separate California criminal offense for the refusal of a blood alcohol test.  Refusals may enhance sentencing and there are certainly consequences for refusal in the form of administrative DMV action against the driver's license, but no separate criminal charge for refusal.  The more interesting situation arises in California arrests where the officer suspects the driver of being under the influence of drugs, removing the option of a breath test.  Will officers suspecting DUI of drugs be required to obtain a warrant prior to a blood draw?  This remains to be seen as the California courts apply the principals of Birchfield under California law. 

This case includes a fascinating history of both DUI law and the 4th Amendment right to remain free of unreasonable search and seizure.  It is worth a read.  Find the full text of Birchfield at https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf

4th Amendment issues are complicated and require the assistance of an attorney familiar with all aspects of your DUI or other 4th Amendment case.  Karen Hunter Bird is not only a trial attorney but also an experience appellate attorney who deals with these issues not only before the trial courts but also before the California Court of Appeal and Supreme Court.  Get her experience on your side, call 310-371-7711.

About the Author

Karen Bird

Karen Bird has over 30 years of experience in criminal law...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Why do you need a Criminal Attorney Now?

If you are arrested and released from custody, you have been given a date to return to court. Even though that court date may be several months away, you need to contact an attorney immediately. There may be work that can be done prior to the court date to make sure no charges are filed against you.


Aenean lacinia bibendum nulla sed consectetur. Donec sed odio dui. Maecenas sed diam eget risus varius blandit sit amet non magna.