The United States Supreme Court recently upheld the constitutionality of state statutes providing criminal penalties for the refusal to provide a breath test after an arrest for DUI, but held them unconstitutional when applied to blood tests.[1] This is a very timely decision because the constitutionality of Florida’s criminal chemical test refusal statute is currently pending before the Florida Supreme Court.[2]  Florida Statute 316.1939 provides criminal penalties for the second or subsequent refusal to provide a blood, breath or urine sample after being arrested for DUI.  Therefore, portions of Florida’s statutes will likely be held unconstitutional.

In this case, three criminal defendants from two different states each challenged their state’s criminal penalties for an arrestee’s refusal to provide a post-arrest sample for alcohol testing.  Because the cases addressed similar constitutional principles, they were consolidated for the purposes of the appeals.  Two defendants challenged blood draws compelled under a North Dakota law providing for criminal penalties for the refusal to provide a sample. The third defendant challenged a Minnesota law providing for criminal penalties for his refusal to provide a breath test following his arrest for DUI.  The defendants collectively argued that they had a constitutional right to refuse to provide the samples, and therefore, the challenged statutes impermissibly subjected them to criminal penalties for the exercise of their constitutional rights.

The Court held that the Fourth Amendment permits warrantless breath tests incident to arrest for DUI, but not warrantless blood tests.  The Court distinguished between the two because breath tests do not implicate significant privacy concerns because the physical intrusion is almost negligible, does not involve the piercing of the skin and is no more intrusive than the taking of a post-arrest buccal swab, which has already been held to be objectively reasonable.  Conversely, a blood test requires the piercing of the skin, requires removal of part of the body and is significantly more intrusive than blowing into a tube.  Furthermore, a blood sample provides the authorities the opportunity to extract more information than the mere blood alcohol content.

Because a warrantless breath test may be required incident to arrest and does not require a warrant, there is no constitutional right to refuse to provide one.  In the absence of a constitutional right, there is no impediment to criminalizing an arrestee’s refusal to cooperate, because these criminal penalties provide another deterrent to the impaired driver.  In reaching its decision, the Supreme Court recognized the States and the Federal Government have a paramount interest in preserving the safety of public highways and that the States have a compelling interest in deterring impaired driving, a leading cause of traffic fatalities and injuries.

Although the recent holding of this case has not yet impacted state court proceedings, it is a very important one because it provides specific guidance to the Florida Supreme Court establishing constitutionality of post-arrest compelled alcohol testing.  Based on this new authority, the Florida Supreme Court will likely uphold the constitutionality of the challenged post-arrest breath test.  Although not at issue in the case now pending before the Florida Supreme Court, the portion of Section 316.1939, Florida Statutes providing for criminal penalties for refusing to provide a blood test are most likely unconstitutional.  Compelled urine samples have not yet been addressed, but would likely be more similar to blood than breath testing and would probably be analyzed under the more stringent blood standard.  Nothing in this latest decision negatively impacts the ability to obtain a search warrant for compelled blood tests or to obtain a blood test under an established exception to the warrant requirement – like exigent circumstances.  This decision merely holds that an arrestee may not be subjected to a blood draw incident to arrest without a warrant or a valid exception to the warrant requirement.

This decision significantly impacts Florida’s implied consent law because the compelled production of a blood sample incident to arrest and without a valid search warrant or exception to the warrant requirement is now clearly unconstitutional.  Therefore, officers should no longer charge arrestees for refusal to submit to a blood test, and, if the standard implied consent is read and an arrestee provides a blood sample under threat of an additional criminal charge, it would most likely be suppressed.  Agency executives should consult with their respective counsel to revise their implied consent warnings to comply with these new guidelines.

J. David Marsey is a former police officer, investigator and prosecutor and is an attorney at the law firm of RumbergerKirk in Tallahassee, Florida.  He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state.