Justices grapple with Breathalyzer laws

Justices grapple with Breathalyzer laws
© Greg Nash

The Supreme Court appeared reluctant Wednesday to uphold state laws that make it a crime for drunken driving suspects to refuse Breathalyzer tests in the absence of a warrant.

Justice Antony Kennedy questioned why such state laws are not a violation of the Fourth Amendment's protections against unreasonable search and seizure, as residents have claimed.

“You’re asking for an extraordinary exception here,” he said. “ You’re asking us to make it a crime to exercise what the majority of people think of as a Constitutional right.”


North Dakota and Minnesota’s “implied consent” laws were at the center of the three cases consolidated for oral arguments on Wednesday, though 10 other states have similar laws on the books that allow drivers to be charged with criminal penalties, including jail time, if they refuse to consent to a breath, urine or blood test.

The states argued that consent on a blood-alcohol test is a “valid bargain” for giving drivers use of state roads.

Following that rationale, Chief Justice John Roberts wanted to know whether drivers are giving officers implied consent to look at their cellphones if suspected of texting while driving and whether that would be another acceptable bargain.

Thomas McCarthy, the lawyer representing North Dakota, said that was highly doubtful.

“It wouldn’t surprise me if there are at least as many accidents caused by people texting while driving as drinking while driving,” Roberts said.

The states argued that having to obtain a warrant in order to administer a Breathalyzer would take too long and diminish the results.


But after discovering that such tests are done at the police station and not on the side of the road, Justice Elena Kagan asked a system couldn't be created to obtain warrants in a matter of minutes using today's technology.

“What would be the problem with just relying on a system like that?” Kagan asked.

The attorneys for North Dakota and Minnesota had trouble arguing against that point. Minnesota’s attorney, Kathryn Keena, explained that officers are unable to force a driver to blow into a straw to take the test even with a warrant.

“Right. You make it a crime not to,” Breyer said. “That will force them.”