Supreme Court divides over breath, blood tests for drunk drivers

Richard Wolf

WASHINGTON — The Supreme Court ruled Thursday that suspected drunk drivers can be arrested for refusing breath tests when police lack a warrant — but they can refuse more invasive blood tests.

The Supreme Court laid down the law on whether police without warrants can arrest drivers for refusing blood or breath tests.

While sympathizing with the intention of such laws in 13 states — to gain evidence of drunk driving before blood alcohol levels recede — a majority of justices said warrants for blood tests must be obtained to protect drivers' constitutional rights.

However, five justices also agreed that simple breath tests do not implicate significant privacy concerns, so police can arrest drivers who refuse them.

"Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving," Justice Samuel Alito wrote.

The decision divided the court three ways. Siding with Alito were Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Elena Kagan. Two liberal justices — Ruth Bader Ginsburg and Sonia Sotomayor — said warrants should be required for both tests.

" I fear that if the court continues down this road, the 4th Amendment's warrant requirement will become nothing more than a suggestion," Sotomayor wrote.

Conservative Justice Clarence Thomas decried the "hairsplitting" between breath and blood tests and said warrants should not be needed for either one.

Supreme Court skeptical of drunken-driving breath tests without warrants

The laws in Minnesota and North Dakota are similar to those in 11 other states: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

The justices have ruled in the past that police cannot search a driver or vehicle after an arrest without getting a warrant, unless it's for their own personal safety or to preserve evidence. In 2013, they ruled that police cannot conduct blood tests for drunk driving without a warrant. The new cases raised a different issue: whether states could arrest those who refuse testing.

While blood tests are invasive, the question of simple breath tests divided the justices the most during oral argument in April. On one hand, they said, blowing into a little box is only a minor invasion. On the other hand, why can't police get a warrant within minutes, even in rural areas with small police departments and a dearth of judges or magistrates?

Chief deputy solicitor general Ian Gershengorn, representing the federal government, responded that judges and magistrates are not available around the clock to issue warrants in more remote parts of the country.

Throughout the oral argument, Alito had appeared most firmly on the side of the states. "The reason why people don't want to submit to a blood-alcohol test is that they don't want their blood alcohol measured," he said. "It's not that they object so much to blowing into a straw."

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