ND, MN drunk driving cases questioning 'implied consent' head to Supreme Court

WASHINGTON - The U.S. Supreme Court will hear arguments today on North Dakota and Minnesota drunk driving cases that could have broader implications for how states deter that crime.

The U.S. Supreme Court is seen in Washington March 29, 2016. REUTERS/Gary Cameron

WASHINGTON - The U.S. Supreme Court will hear arguments today on North Dakota and Minnesota drunk driving cases that could have broader implications for how states deter that crime.

At the heart of the three consolidated cases are whether states may criminalize a suspected drunk driver's refusal of a chemical test when police did not obtain a warrant. Groups such as the American Civil Liberties Union and an association of DUI defense attorneys have lined up behind the three men bringing their case to the country's highest court, arguing that laws in North Dakota and Minnesota violate constitutional protections against warrantless searches.

"An individual has a right to refuse to consent to such a search and insist that the police obtain a warrant," the ACLU wrote in a brief to the court. "The government cannot criminalize that conduct."

The case comes after North Dakota lawmakers passed legislation to beef up penalties for drunk driving offenses in 2013. A change in state statute means refusal of a chemical test "is a crime punishable in the same manner as driving under the influence."

In a brief in support of the states, Mothers Against Drunk Driving (MADD) argued drivers have provided implied consent to blood alcohol concentration tests when they receive driver's licenses. The organization added that reversing the North Dakota and Minnesota courts' decisions "threatens to hamper enforcement efforts against drunk drivers and, as a result, could lead to increased drunk driving and increased loss of life."


Daniel Koewler, a Twin Cities attorney who submitted a brief on behalf of the DUI Defense Lawyers Association, said test refusal laws have been a major source of debate since the Supreme Court weighed in on a similar issue in 2013. He predicted a "huge, broad-based decision" in the three latest cases.

"They'll be teaching these cases to law students for decades to come," he said.


One of the cases included in today's arguments originated in October 2013, when Danny Ray Birchfield drove his car into a Morton County ditch. A preliminary breath test showed he had a 0.254 blood alcohol level, more than three times the legal limit.

A North Dakota Highway Patrol officer arrested Birchfield for driving under the influence. Birchfield then refused to consent to a blood test, which earned him a misdemeanor charge.

Birchfield tried to have the refusal charge dismissed on the grounds that it was unconstitutional. The district court denied his motion and Birchfield eventually pleaded guilty, but he reserved his right to appeal, according to court records.

Birchfield did appeal to the North Dakota Supreme Court, which upheld the lower court's decision in January 2015 and concluded "the criminal refusal statute does not violate Birchfield's rights under the Fourth Amendment."

That case mirrors another in Minnesota, where William Robert Bernard Jr. was charged for refusing to submit a breath test in a 2012 incident. The third case, which originated in North Dakota, questions "whether consent to a search is valid for Fourth Amendment purposes when the state obtains consent by informing the person" that they face a criminal charge if they decline the search.


North Dakota Republican State Sen. David Hogue was a sponsor of legislation in 2013 that included criminalizing the refusal of a chemical test. An attorney in Minot, Hogue said "we have a small group of habitual drunk drivers out there who continually flout the law."

"One way that those people have escaped detection was through chemical refusals," he said. Roughly 19 percent of those arrested for driving under the influence in 2011 in North Dakota refused a chemical test, according to North Dakota's brief submitted to the Supreme Court.

Mark Friese, a defense attorney at the Vogel Law Firm in Fargo, said "it's good policy" to enforce administrative penalties on people who decline a test.

"But concluding that the person is guilty of a crime because they're exercising a constitutional right to require the police to have a judge make an independent probable cause determination is problematic," he said.

Implied consent

The states argue drivers already have agreed to take alcohol tests, citing "implied consent."

North Dakota's argument to the Supreme Court stated "in return for access to North Dakota's public roads, drivers consent to taking a chemical test upon arrest for drunken driving." Minnesota's brief also cites implied consent laws.

"The government's compelling interest in eradicating drunk driving far outweighs the small intrusion on drunk drivers' privacy," the argument stated. "A warrantless breath test is therefore reasonable under the Fourth Amendment."


Adam Vanek, general counsel for MADD, said a driver needs to be arrested for driving drunk before it's a crime to refuse a BAC test in North Dakota.

"So there's probable cause, (and) that's the reason it doesn't violate the Fourth Amendment," he said.

But a brief submitted to the Supreme Court by the DUI Defense Lawyers Association argues that the states' test refusal laws are "designed to circumvent the Fourth Amendment by simply coercing the individual faced with such a law into giving up their rights of their own accord." And Koewler questioned whether someone can truly consent to a test when he or she faces a criminal charge.

"In my mind, that's unequivocally not consent," he said.

Related Topics: U.S. SUPREME COURT
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