by Sherry F. Colb
In my Verdict column for this week, I wrote about the case of Birchfield v. North Dakota. In Birchfield, the Supreme Court held that states may criminalize the refusal of a DWI (Driving While Impaired) arrestee to take a breathalyzer test, even absent a warrant, but they may not criminalize the refusal of a DWI arrestee to take a blood test, absent a warrant. The basic logic of the decision rests on the intrusiveness of a blood test (in terms of both physical intrusion and informational exposure) relative to a breath test, coupled with the need for police to have some test that accurately reveals how much alcohol is in a DWI arrestee's system, given the significance of successfully prosecuting and thereby deterring driving while under the influence of alcohol. In my column, I praise the Court's decision for the most part and take particular note of the fact that (1) the Court considered informational privacy as a relevant part of its assessment of the breath test versus the blood test, and (2) the Court also looked at the less intrusive alternative (of a breath test) available to police in assessing the reasonableness of performing a blood test as an incident to arrest. Both of these "moves" by the Court are unusual and, I think, positive, because informational privacy is in fact an important part of what people value about their private spaces and less restrictive alternatives ought to play a role in assessing the reasonableness of a governmental measure.
In this post, I want to consider critically the Court's decision to hold that police may perform breath tests not as a matter of exigent circumstances but instead as part of a lawful "search incident to arrest." The breathalyzer test is distinct from the garden-variety search incident to arrest in a number of ways that make me skeptical of the Court's decision to place this test under the SITA (search incident to arrest) doctrinal rubric.
First, the search incident to arrest authority ordinarily accompanies every arrest, regardless of what the arrest is for (and, correspondingly, regardless of whether there might be weapons or evidence associated with that particular arrest). In Birchfield, the Court announces a special SITA authority that exists only when a person is arrested for DWI rather than in arrest cases generally. This difference already flags the case as distinctive. Second, and related to the first point, it is generally the arrest situation itself that generates the need for police to be able to search for weapons or evidence that the suspect might reach for. That is, absent the arrest, the suspect would not be motivated to reach for weapons or try to destroy evidence. In the DWI case, however, because the suspect is not "deciding" to metabolize the alcohol in his system, it is the fact that he has been drinking and not the fact of the arrest that gives rise to the concern about loss of evidence. There is accordingly no strong nexus between "arrest" and "search incident to arrest" that would ordinarily tie these two events neatly together, as in other situations.
Third, searches incident to arrest are ordinarily performed immediately upon arresting the suspect. There is a reason for this: if the worry is the reaching for a weapon or the destruction of evidence, the police have every reason to move immediately rather than first arresting the suspect and then later checking to see whether he has a weapon in his pocket or whether he is in the process of destroying crucial evidence. In the case of the BAC test, however, the test for alcohol in the suspect's blood does not occur until a while after the suspect is first arrested. Indeed, as the Court acknowledged in a different case about BAC tests, Missouri v. McNeely, it is typical for police to be able to obtain a warrant quite a bit earlier than they can perform a BAC test (and this turns out to be true for breath tests as well as blood tests, as Justice Sotomayor explains in her partial dissent in Birchfield). Unlike the other sorts of SITA cases, then, the police wish to perform a BAC test on a DWI suspect because they have probable cause to believe they will find an elevated BAC level, and that seems like the very sort of situation that calls for seeking a warrant (or an exigent circumstance to account for the lack of it) rather than relying on a generalized SITA doctrine.
In short, BAC tests--whether breath or blood--seem quite distinguishable from the usual SITA that the Supreme Court has approved in the past, as a means of protecting police from hidden weapons and preventing the destruction of whatever evidence might happen to be on or near a suspect's person. The special SITA for alcohol seems both unnecessary, then, and a poor fit for this doctrine. Though I spoke approvingly of the Court's decision (more as a matter of distinguishing blood from breath than as an absolute matter), I do think it represents a strange departure from the ordinary SITA doctrine that I hope will not pave the way for more unusual SITA allowances in the future.