SCOTUS: No Warrant Needed for DUI Post-Arrest Breath Test; Warrant Still Required for Blood

This week, the U.S. Supreme Court further addressed the issue of mandatory chemical testing in DUI cases.  The Court had previously held that states could not force DUI blood tests without a warrant, and thus prosecuting persons for refusing blood testing absent a warrant violated the Fourth Amendment.  Colorado does not criminalize a refusal to consent to chemical testing, but in light of the SCOTUS rulings regarding warrantless DUI blood draws many Colorado courts have ruled that refusal to consent voluntarily to a blood test could not be used against a defendant at trial except for purposes of impeachment.  Refusal of chemical testing can still be used against a Colorado DUI suspect in administrative proceedings involving his driving privilege, as criminal Constitutional protections did not likewise apply.

Today, the Court issued its ruling in Birchfield v. North Dakota, holding that intoxilizer breath tests do not rise to the same level of intrusion as blood tests and therefore do NOT require a warrant.  As neither blood nor breath samples are "testimonial" evidence, they are not protected by the Fifth Amendment right against self-incrimination.  However, the Fourth Amendment does protect individuals from "unreasonable searches and seizures" and therefore require a warrant or a valid legal exception therefrom.  In Birchfield, the Court held that that the intrusion of requiring a breath sample was extremely minimal and was not comparable to the actual physical intrusion of piercing the skin for a blood draw.  The Court did not carve out a new exception to the Fourth Amendment warrant requirement, but merely applied the long-standing "search incident to lawful arrest" established nearly a half-century ago in California v. Chimel. However, this ruling clearly expands the boundaries of Chimel and its progeny, as the search incident to lawful arrest exception was clearly approved to facilitate officer/community safety by ensuring an arrestee was not carrying weapons/contraband into detention facilities, NOT to discover additional evidence or evidence of new crimes as in the present case.

Criminal law and the law pertaining to DUI is complex and ever-changing, and the assistance of an experience lawyer is important in defending these types of cases.