“I’m not talking law,
I’m talking practical facts,” Justice Stephen Breyer told Kathryn Keena, a
Minnesota county attorney, about two-thirds of the way through today’s
seventy-one-minute oral argument in Birchfield v. North Dakota.
The issue before the Court was, of course, a legal
one: can a state, without a warrant, make it a crime for a driver
suspected of driving under the influence to refuse to take a test to measure
the alcohol in his blood? Three men from Minnesota and North Dakota
contend that the states cannot, because it would violate their rights under the
Fourth Amendment to be free from unreasonable searches.
But as Breyer’s
statement demonstrates, the Justices today were far more interested in the
facts, even as the lawyers in the case sometimes struggled to provide them to
the Court’s satisfaction. And although for a while it looked like the
Justices might be ready to rule in the states’ favor, it was one fact – that
breath tests are normally not administered at the side of the road, but instead
at the police station – that might in the end make all the difference.
Things looked pretty good for the states at
first. Three of the Court’s more conservative Justices didn’t seem to
regard the imposition of criminal penalties as particularly problematic.
Justice Anthony M. Kennedy, for example, observed that many states will revoke
the license of a driver who refuses to take a blood or breath test – a civil
penalty. And if that’s the case, he asked attorney Charles Rothfeld,
representing the drivers, why can’t states decide to impose a criminal penalty
instead? Given the choice between spending three days in jail or having
your license suspended for three years, he suggested, many people might choose
the jail time.
Justice Samuel Alito and Chief Justice John Roberts
noted that, under the Supreme Court’s earlier cases, airline pilots and train
operators can be subjected to drug and alcohol testing without a warrant – an
exception to the Fourth Amendment’s general warrant requirement known as the
“special needs” exception. In the case of railroads, Roberts told
Rothfeld, the need to keep transportation on railroads safe was sufficiently
compelling to justify the testing without a warrant. Why can’t that be
the case here, he asked, when “I suspect more people die from drunk driving
than train accidents?”
This theory apparently appealed to Kennedy as
well. Assuming that the statistics about drunk driving are compelling, he
asked, and “innocent lives” are at stake, why can’t we just say that this falls
within the special-needs exception?
It then seemed to go from bad to worse for the
drivers, as some of the Court’s more liberal Justices looked like they too
might be ready to line up behind at least a partial victory for the
states. Breyer suggested that, both as a practical matter and for
purposes of the Fourth Amendment, there is a significant difference between a
breath test and a blood test. The former, as he demonstrated by blowing
into the microphone, is “easy.”
But a blood test is both painful and
logistically more complicated, as it requires the arresting officer to
transport the driver elsewhere. “What is wrong with a Breathalyzer test,”
he asked, “when it can save lots of lives” and is given to people who are
believed to be drunk?
Rothfeld countered that even a breath test is a
“significant intrusion on personal integrity.” But that argument seemed
to fall on deaf ears. “I didn’t say” that the breathing required by the
test was “ordinary,” Breyer retorted, but “why is it so intrusive that the
Constitution insists on a warrant?”
Alito chimed in, asking Rothfeld to explain how having
a straw in your mouth, as the breath test requires, is so intrusive. The
drivers aren’t actually objecting to the invasiveness of the breath test, he
told Rothfeld. Their real gripe with the test, he asserted, is that they
just don’t want their blood-alcohol levels tested.
Justice Elena Kagan then boarded the breath-test
bandwagon. Why, she asked Rothfeld, can’t the Court simply say that the
breath test falls within another exception to the Fourth Amendment’s warrant
requirement, which allows police to search both the body of an arrestee and the
area around him? Rothfeld responded that a breath test to measure
blood-alcohol levels does not have anything to do with either of the two
purposes that the exception is intended to advance: the safety of the
arresting police officer and a desire to prevent the arrestee from destroying
any evidence within his reach.
But Kagan insisted that the breath test
does help to preserve evidence, by recording the driver’s blood-alcohol level
before it dissipates. Remarking that “this is about as uninvasive as a
search can possibly be,” she told Rothfeld that the Court can consider how
invasive a search is when deciding whether the exception applies.
But then the outlook became considerably less rosy for
the states, as the Justices’ focus shifted to why, as a practical matter,
police can’t just go ahead and get a warrant if they want a DUI suspect to be
tested. Kagan asked attorney Thomas McCarthy, representing North Dakota,
to assume that police could get a warrant within ten or fifteen minutes of
applying. If that were true, she queried, why exactly would the state have to
forge ahead without one?
Breyer pointed out that Kagan’s hypothetical scenario
is in fact reality in some western states. According to a brief filed by
a group of criminal defense lawyers in support of the drivers, the wait time
for a warrant is five minutes in Wyoming, and fifteen in Montana. In North
Dakota, McCarthy told the Justices, the process takes longer: the wait may take
between thirty and sixty minutes in larger cities, but even more time in the
more rural areas. McCarthy blamed the longer wait times on “a lack of
resources and manpower,” but Justice Sonia Sotomayor was unmoved. “So
that excuses you from a constitutional requirement?” she asked McCarthy.
Even though other places might be able to speed up the process, she inquired
skeptically, “we give a pass to North Dakota because it doesn’t want to?”
Kennedy summarized the quandary facing the Court
bluntly: “We find that modern technology allows, in some States, both
sparsely populated and heavily populated, to get a warrant in fifteen
minutes.” However, he continued, North Dakota and Minnesota are telling
the Court that getting a warrant “takes too long.” In a thoroughly
exasperated tone, Kennedy cautioned McCarthy that he was “asking for an
extraordinary exception” to the warrant requirement.
Keena, arguing for Minnesota, had an equally tough
time. Once again, the Justices focused on the breath test. But this time
they zeroed in on the fact that breath tests are usually done at the police
station, rather than on the side of the road. Even if a breath test is
not particularly invasive, the Justices repeatedly asked, what harm could come
from seeking a warrant during the time it takes to drive the suspect to the
police station? The Justices pressed Keena to explain the practical
effects of such a rule. But they did not seem to regard her response –
that a warrant is not especially useful for breath tests, because there is no
way to force someone to take a breath test – as particularly convincing.
Sotomayor offered a solution: once police have
obtained a warrant, a driver who refuses to take the test can be charged with
obstruction of justice. But Keena rejected that idea. She explained
that, when a driver is convicted of obstruction of justice rather than on
drunk-driving charges, prosecutors cannot use that conviction to enhance a
later DUI charge. Sotomayor was adamant, responding (in so many words)
that such a result would be Minnesota’s choice, and Minnesota’s problem.
Arguing on behalf of the United States, Deputy
Solicitor General Ian Gershengorn tried to turn the case around. He
emphasized that, “in the real world,” warrants are not available twenty-four
hours a day, seven days a week. If the Court were nonetheless to assume
that they are, he warned, “there is a serious risk that” evidence will be lost
in the places where it takes longer to get a warrant.
The Court returned once again to the idea of a
distinction, for Fourth Amendment purposes, between blood and breath
tests. Gershengorn agreed that the privacy concerns associated with a
breath test are “substantially smaller” than with a blood test. Having
said that, though, Gershengorn reiterated that blood tests are also “critically
important” for police and prosecutors. But after today’s argument, blood tests
without a warrant may be a lost cause.
The only real question may be
whether enough Justices are convinced that, even if a breath test is only
minimally invasive, warrants are easy enough to obtain that they should be
required anyway. North Dakota, Minnesota, and the ten other states that
also impose criminal penalties on drivers who refuse blood-alcohol tests will
be waiting anxiously for the answer to that question.
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