By David Daggett
On June 23rd, the Supreme Court of the United States released a much anticipated opinion in the case of Birchfield v. North Dakota, 579 U.S. ____ (2016) in which it addressed the issues of implied consent, search incident to arrest, breath and blood tests and criminal sanctions for refusing said tests. While the result wasn’t a total victory for the State, it was a victory nonetheless and, all things considered, some potential major headaches were avoided.
The Supreme Court actually heard three cases that were consolidated under the Birchfield heading: Birchfield v. North Dakota, Bernard v. Minnesota and Beylund v. North Dakota. It is important to note that North Dakota and Minnesota, like many other states, have statutes making it a separate criminal offense for refusing to submit to a breath or blood test for a DUI related offense, subject to the same penalty as a DUI offense. In other words, a driver in Minnesota or North Dakota refusing to take a breath or blood test could not only be charged and convicted of the impaired driving offense, but could also be charged with the separate crime of refusing the breath or blood test. The State of Maryland, while not actually making it a separate criminal offense, does subject those who refuse to take a breath or blood test to an additional 60 day/$500 penalty if the driver is convicted of a DUI offense and the finder of fact finds beyond a reasonable doubt that it was a knowing refusal. See TR §27-101(x).
With that as a backdrop, the protagonists of our story, Danny Birchfield, William Bernard and Steve Beylund (AKA The Killer B’s) had their cases consolidated by the Supreme Court to settle the issue: Birchfield had refused to consent to a blood draw; Bernard had refused a breath test; and Beylund, while consenting to a blood draw, nonetheless argued that his consent was coerced due to the officer’s warning that a refusal to consent would itself be a crime. The SCOTUS granted certiorari in all three cases in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring their alcohol content and whether or not such tests are justified based merely on the act of applying for, and receiving, a driver’s license.
Search Incident to Arrest Doctrine
In a very entertaining read, Justice Alito drafted an entertaining historical analysis of the Search Incident to Arrest Doctrine, going as far back as 1754 Britain. Justice Alito cited an 18th century manual for justices of the peace, which included the following verbage:
A thorough search of the felon is of the utmost consequence to your own safety, and the benefit of the public, as by this means he will be deprived of instruments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will be sure to find some means to get rid of. Id @16, 17
To quote the Greg Kihn band, “They don’t write ‘em like that anymore,” with the possible exception of Judge Charles Moylan. The Court then touched on a number of search incident to arrest cases, including Weeks (1914), Lefkowicz (1932), Harris (1914), Rabinowitz (1950), Chimel (1969), Robinson (1973) and Riley (2014). If you want to read them, the full citations can be found in the Birchfield opinion on pages 18 and 19.
The Court referenced its decision in Riley v. California, 134 S. Ct. 2473, 573 U.S. ___(2014), which dealt with a search of data contained in the memory of a cell phone. The Court wrote, “Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement by assessing on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate interests.” Riley @ p. 2479
The Court in Birchfield noted that our founding fathers failed to provide any definitive guidance as to whether breath and blood tests should be allowed incident to arrest and then proceeded to examine the balancing test espoused in Riley. Apparently, drunk driving was not much of an issue in the years following the American Revolution.
The Impact of Breath and Blood Tests upon Individual Privacy Interests
Breath Tests – After running through its analysis, the SCOTUS determined that the physical intrusion of a breath test is almost negligible and entails a “minimum of inconvenience.” According to Justice Alito, “the effort is no more demanding than blowing up a party balloon,” and is “no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek or scraping underneath a suspect’s fingernails to find evidence of a crime.” p. 20 slip opinion
Blood Tests – On the other hand, the Court determined blood tests to be significantly more intrusive. Blood tests require a piercing of the skin and extracting a part of the subject’s body. The Court stated that while humans exhale air from their lungs many times per minute, they do not continually shed blood. Justice Alito also cited the additional anxiety that can be caused by a blood test (as opposed to a breath test) due to the fact that different types of information can be extracted from blood (such as a DNA profile, medical and health related issues, etc.) while only blood alcohol content can be determined from a breath test.
Schneckloth v. Buatamonte, 412 U.S. 218 (1973) established that a search is reasonable – and not subject to a warrant – when the subject consents to the search. Marshall v. Barlow’s Inc, 436 U.S. 307 (1978) expanded consent searches to cover not only allow those in which consent is expressed, but also when it is implied or inferred from context and conduct. Missouri v. McNeely, 133 S. Ct. 1552 (2013), the case that gave birth to these issues, also referenced the general approval of the concept of implied-consent laws that impose administrative sanctions for the refusal to submit to breath or blood tests.
In Maryland, one need only look at the back of one’s driver’s license to find the basis of the implied consent laws: “Driving in Maryland implies consent to chemical testing for intoxication as required by law.” In other words, while one doesn’t necessarily have to submit to the test, anyone refusing to do so faces additional administrative (and criminal) sanctions.
In the Birchfield trilogy, the Supreme Court ultimately drew the line at the State’s attempt to extend implied consent laws to the imposition of criminal penalties for the refusal to submit to blood tests. The Court noted, “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” @ p. 36. The Court concluded that motorists cannot be deemed to have actually consented to submit to a blood test when the sanction for refusal is the very real possibility of being charged with an additional criminal offense.
The Court accepted the idea that laws making it a crime (or otherwise subjecting a suspected drunk driver to additional or enhanced penalties) for refusing to submit to a test serve a very important public service. The Court noted that these laws seek to preserve the safety of the public, reduce the number of deaths on our Nation’s roadways, and provide an incentive to cooperate in DUI related cases.
After assessing the effects of BAC testings on privacy interests, the Supreme Court concluded that the Fourth Amendment does, in fact, permit warrantless breath tests incident to DUI arrests.
Unfortunately, the Supremes reached a different conclusion regarding blood tests. The Court, in expressing their opposition to warrantless blood tests, referenced the heavy hitting Missouri v McNeely, and cited such language as, “compelled physical intrusion beneath the skin and …veins”; “significant bodily intrusions”; and compared a blood test to “offering one’s throat to Count Dracula under the misty light of the pale moon.” OK, that last one was made up, but you get the point.
The Court deemed blood tests to be significantly more intrusive searches than are breath tests, and therefore concluded that a warrant was required prior to mandating a blood sample – though such a search could still be subject to the exigent circumstances exception that was examined at length in McNeely.
It is important to note that the refusal to take a breath test or to provide a blood sample should have no effect on the Administrative sanctions that may be levied on a driver by the Motor Vehicle Administration. The Court, on page 36 of Birchfield states, “Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.”
This language would seem to indicate that, in addition to the imposition of administrative penalties such as license suspension and ignition interlock requirements, the refusal to submit to either a breath or blood test can still be used by prosecutors to show consciousness of guilt.
Effect on Maryland Law
Maryland’s statutory requirements relating to breath and blood tests are found in the DR-15 form, using language taken directly from Transportation Article § 16-205.1(b). The DR-15 is a very long and convoluted form. Just out of curiosity, I timed myself reading it aloud and it took me 7 minutes and 50 seconds – and that was reading fast and with no interference. I’m not sure that the participants at a Mensa meeting could comprehend what is actually being read to them – let alone drunk drivers – but that issue has already been resolved and is not relevant to this subject matter.
The specific language in Maryland’s DR-15 that has been subject to state-wide district and circuit court implied consent challenges is the following:
If you refuse to submit to a test: The suspension will be 120 days for a first offense and 1 year for a second or subsequent offense. An additional criminal penalty of not more than $500 or imprisonment for not more than 2 months, or both, may be imposed under §27-101(x) of the Maryland Vehicle Law if you are convicted of a drunk or drugged driving offense under §21-902, and the judge or jury finds beyond a reasonable doubt that you knowingly refused to take a test arising out of the same circumstances.
It appears clear from the holding in Birchfield that while Maryland’s additional 60 day penalty for refusing a breath test is still valid, it is equally clear that the additional penalty can no longer be applied to the refusal to take a blood test, absent a warrant or otherwise valid consent.
Fatalities or Life-Threatening Injuries
After McNeely was unleashed in 2013, the Maryland Attorney General’s Office Criminal Appeals Division issued an informal opinion that, when it came to blood draws in cases involving fatalities or life-threatening injuries (under TR § 16-205.1(c)), police officers should make a good-faith effort to secure a search warrant prior to drawing blood. If it becomes apparent during this good-faith endeavor that it is unlikely they will obtain that warrant within the respective 2 or 4 hour time limits, then McNeely’s exigent circumstances exception to the warrant requirement may exist and blood may be drawn absent a warrant. Of course, that presupposes that law enforcement can find someone from the hospital willing to assist, which is easier said than done. Regardless, due to the serious nature and potential consequences of fatal and life-threatening injury crashes, it is always a good idea to attempt to obtain a search warrant prior to drawing blood.
Another conundrum arising out of Birchfield is the effect on DRE cases. Typically, Drug Recognition Experts are asked to respond when the suspect driver blows a 0.00, or has a BAC reading below a 0.07 and the person’s actions are inconsistent with that particular reading and evidences drug usage in addition to alcohol. Post Birchfield – and with the current wording of the DR-15 – a strong argument could be made that once the suspect has been read the DR-15 by the arresting officer (and advised of the additional criminal sanctions), the DREs subsequent request for a consensual blood test is unlawful and any confirmatory result would be inadmissible.
Just last week representatives from the Maryland Attorney General’s Motor Vehicle Administration, State Police and Criminal Appeals divisions met to address this issue and determined that a slight modification of the current DR-15 is in order to reflect the limited holding in Birchfield. These new forms will also reflect administrative changes created by the passing of Noah’s Law. Unfortunately, these amended DR-15s may not be available from the printers for a couple of months. It is anticipated that a supplemental form reflecting the current state of the law regarding blood tests – to be read in addition to the standard DR-15 form – will be available in short order, pending the availability of the updated DR-15. These new forms should negate both the State’s “implied” consent and the defendant’s “coerced” consent arguments regarding blood tests, taking us back to the days of yore when the question of consent was simply whether such consent given freely, voluntarily, and without duress.
I will keep you appraised of the status of this supplemental form.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE WITH ANY SPECIFIC LEGAL QUESTIONS REGARDING THE SUBJECT MATTER OF THIS BLOG.