Is a DUI Breath Test an Illegal Search?

In DUI cases police routinely order people to take breath tests. For years no one gave much thought to whether such orders are legal. The 2013 case of Missouri v. McNeely may be changing that situation.

In McNeely the Supreme Court held that a warrant was required before a blood test could be taken against a person’s will. The argument went that sticking a needle into someone’s arm and taking their blood to analyze it invades a person’s privacy. Protecting personal privacy from government intrusion is the purpose of the Fourth Amendment. That amendment says that individuals are protected from government intrusion “in their persons, houses, papers and effects” from unreasonable searches.

As a general rule a search is unreasonable unless the police first obtain a warrant for that search.  The warrant must be based upon probable cause to believe the search will turn up evidence of criminal activity. A warrant is in order from a judge or magistrate that says there is enough evidence to believe a search will produce evidence of a crime, and therefore a search is allowed. When police search without a warrant it is presumed to be an unreasonable search unless it fits into a recognized exception to the warrant requirement.

Exceptions to the warrant requirement are limited. In most cases probable cause to believe the search will turn up evidence of a crime is still required. The police are not required to obtain a warrant, however, because of either urgent time limitations or other emergency situations. An example of such an emergency situation is when police enter a house to pursue a fleeing armed robber who they are chasing. Clearly, there is no time to get a warrant.

Other examples include entering a burning house to look for injured occupants, and entering a crack house where there is reason to believe the people inside are trying to dispose of the drugs before the police arrive. Other exceptions are searching a person for weapons or contraband when they been arrested, or searching their car when there is a possibility that they might pull a weapon out of the glove box.

Perhaps the most common exception to the warrant requirement, however, is consent. If a person consents to a search, a warrant is not required. Consent is not valid consent if it is coerced or obtained by trickery or deceit.  Consent must be freely given.

So how does this apply to breath tests? Several years ago, in a railroad employee drug and alcohol testing case, the Supreme Court decided that a breath test was a search, just like a blood test. That case was Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989). In Skinner the court said:

“We have long recognized that a ‘compelled intrusion into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth Amendment search. In light of our society’s concern for the security of one’s person, it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interest. Much the same is true of the breath-testing procedures required [under federal regulations]. Subjecting a person to a breath test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search. Skinner, 489 U.S. at 616–17.”

So it only makes sense that if a warrant is required for a blood test (McNeely) because it is a search, a warrant is also required for breath test.

Almost every state has enacted an implied consent law. Maine is one of those states. Implied consent laws say that if you drive on the roads in that state, you are presumed to have given consent to a test of your blood, breath or urine, for alcohol or drugs. If you fail to take a test when police seek a blood, breath or urine test, there are usually very serious consequences. At a minimum, your license will be suspended. In Maine you also face extra jail time and higher fines if you are convicted of the OUI charge. In some states, and in federal parks and other federal locations, it is a separate crime if you refuse a test. So is your “consent” to submit to a blood, breath or urine test because of implied consent law freely given consent? At least one court says “no.”

The Supreme Court of Arizona recently held in State v. Butler, 302 P.3d 609 (Az. 2013), that a juvenile driver who was read the implied consent consequences for refusal was coerced into giving consent to a blood test. This makes sense. When you take a test because you will lose your license or go to jail if you don’t take it, your consent to take the test is not voluntary. It is coerced by threats.

According to the Supreme Court a warrant is required for blood tests in DUI cases because a blood test is a search that invades personal privacy.  The Supreme Court also says that a breath test is a search, just like a blood test.  So if a warrant is required for a blood test, and a breath test is a search just like a blood test, shouldn’t a warrant be required for a breath test?  This issue is being raised in more and more states. I am fighting the issue here in Maine.

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