Birchfield v. N. Dakota. William Robert Bernard

Decision Date23 June 2016
Docket NumberNos. 14–1468,14–1507.,14–1470,s. 14–1468
Citation136 S.Ct. 2160,195 L.Ed.2d 560
Parties Danny BIRCHFIELD, petitioner v. NORTH DAKOTA. William Robert Bernard, Jr., petitioner v. Minnesota. and Steve Michael Beylund, petitioner v. Grant Levi, Director, North Dakota Department of Transportation.
CourtU.S. Supreme Court

Charles A. Rothfeld, Washington, DC, for the petitioners.

Thomas R. McCarthy, for the respondents in Nos. 14–1468 and 14–1507.

Kathryn Keena, for the respondent in No. 14–1470.

Ian H. Gershengornfor the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Dan Herbel, Herbel Law Firm, Bismarck, ND, Eugene R. Fidell, Yale Law School, New Haven, CT, Charles A. Rothfeld, Andrew J. Pincus, Michael B. Kimberly, Paul W. Hughes, Mayer Brown LLP, Washington, DC, for petitioner Danny Birchfield.

Thomas R. McCarthy, William S. Consovoy, J. Michael Connolly, Bryan K. Weir, Consovoy McCarthy Park PLLC, George Mason University, School of Law Supreme, Arlington, VA, Brian David Grosinger, Assistant State's Attorney, Morton County Courthouse, Mandan, ND, Patrick Strawbridge, Consovoy McCarthy Park PLLC, George Mason University School, Law Boston, MA, Michael Park, Consovoy McCarthy Park PLLC, New York, NY, for State of North Dakota.

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, MN, Eugene R. Fidell, Yale Law School, New Haven, CT, Charles A. Rothfeld, Andrew J. Pincus, Michael B. Kimberly, Paul W. Hughes, Mayer Brown LLP, Washington, DC, for petitioner William Robert Bernard, Jr.

James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant Dakota County Attorney, Dakota County Attorney's Office, Hastings, MN, for State of Minnesota.

Thomas F. Murtha IV, Murtha Law Office, Dickinson, ND, Eugene R. Fidell, Yale Law School, New Haven, CT, Charles A. Rothfeld, Andrew J. Pincus, Michael B. Kimberly, Paul W. Hughes, Mayer Brown LLP, Washington, DC, for petitioner Steve Michael Beylund.

Justice ALITOdelivered the opinion of the Court.

Drunk drivers take a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver's BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed "implied consent laws." These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State's drunk-driving laws.

In the past, the typical penalty for noncompliance was suspension or revocation of the motorist's license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment's prohibition against unreasonable searches.


The problem of drunk driving arose almost as soon as motor vehicles came into use. See J. Jacobs, Drunk Driving: An American Dilemma 57 (1989) (Jacobs). New Jersey enacted what was perhaps the Nation's first drunk-driving law in 1906, 1906 N.J. Laws pp. 186, 196, and other States soon followed. These early laws made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. As a result, prosecutors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech. R. Donigan, Chemical Tests and the Law 2 (1966) (Donigan). As one early case put it, "[t]he effects resulting from the drinking of intoxicating liquors are manifested in various ways, and before any one can be shown to be under the influence of intoxicating liquor it is necessary for some witness to prove that some one or more of these effects were perceptible to him." State v. Noble, 119 Ore. 674, 677, 250 P. 833, 834 (1926).

The 1930's saw a continued rise in the number of motor vehicles on the roads, an end to Prohibition, and not coincidentally an increased interest in combating the growing problem of drunk driving. Jones, Measuring Alcohol in Blood and Breath for Forensic Purposes—A Historical Review, 8 For. Sci. Rev. 13, 20, 33 (1996) (Jones). The American Medical Association and the National Safety Council set up committees to study the problem and ultimately concluded that a driver with a BAC of 0.15% or higher could be presumed to be inebriated. Donigan 21–22. In 1939, Indiana enacted the first law that defined presumptive intoxication based on BAC levels, using the recommended 0.15% standard. 1939 Ind. Acts p. 309; Jones 21. Other States soon followed and then, in response to updated guidance from national organizations, lowered the presumption to a BAC level of 0.10%. Donigan 22–23. Later, States moved away from mere presumptions that defendants might rebut, and adopted laws providing that driving with a 0.10% BAC or higher was per se illegal. Jacobs 69–70.

Enforcement of laws of this type obviously requires the measurement of BAC. One way of doing this is to analyze a sample of a driver's blood directly. A technician with medical training uses a syringe to draw a blood sample from the veins of the subject, who must remain still during the procedure, and then the sample is shipped to a separate laboratory for measurement of its alcohol concentration. See 2 R. Erwin, Defense of Drunk Driving Cases §§ 17.03–17.04 (3d ed. 2015) (Erwin). Although it is possible for a subject to be forcibly immobilized so that a sample may be drawn, many States prohibit drawing blood from a driver who resists since this practice helps "to avoid violent confrontations." South Dakota v. Neville, 459 U.S. 553, 559, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

The most common and economical method of calculating BAC is by means of a machine that measures the amount of alcohol in a person's breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Refusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the "Drunkometer," was invented and first sold in the 1930's. Note, 30 N.C.L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject's breath alcohol concentration and by extension, BAC, from this figure. Id., at 303–304. A more practical machine, called the "Breathalyzer," came into common use beginning in the 1950's, relying on the same basic scientific principles. 3 Erwin § 22.01, at 22–3; Jones 34.

Over time, improved breath test machines were developed. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin § 18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Administration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver § 7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAC levels, from the very low to the very high. 77 Fed.Reg. 35747 (2012); 2 Erwin § 18.07; Jones 38; see also California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

Measurement of BAC based on a breath test requires the cooperation of the person being tested. The subject must take a deep breath and exhale through a mouthpiece that connects to the machine. Berger, How Does it Work? Alcohol Breath Testing, 325 British Medical J. 1403 (2002) (Berger). Typically the test subject must blow air into the device " 'for a period of several seconds' " to produce an adequate breath sample, and the process is sometimes repeated so that analysts can compare multiple samples to ensure the device's accuracy. Trombetta, supra, at 481, 104 S.Ct. 2528; see also 2 Erwin § 21.04[2][b](L), at 21–14 (describing the Intoxilyzer 4011 device as requiring a 12–second exhalation, although the subject may take a new breath about halfway through).

Modern breath test machines are designed to capture so-called "deep lung" or alveolar air. Trombetta, supra, at 481, 104 S.Ct. 2528. Air from the alveolar region of the lungs provides the best basis for determining the test subject's BAC, for it is in that part of the lungs that alcohol vapor and other gases are exchanged between blood and breath. 2 Erwin § 18.01[2][a], at 18–7.

When a standard infrared device is used, the whole process takes only a few minutes from start to finish. Berger 1403; 2 Erwin § 18A.03[2], at 18A–14. Most evidentiary breath tests do not occur next to the vehicle, at the side of the road, but in a police station, where the controlled environment is especially conducive to reliable testing, or in some cases in the officer's patrol vehicle or in special mobile testing facilities. NHTSA, A. Berning et al., Refusal of Intoxication Testing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008).

Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for States to find a way of securing such cooperation.1 So-called "implied consent" laws...

To continue reading

Request your trial
850 cases
  • Hernandez v. One
    • United States
    • U.S. District Court — Eastern District of California
    • June 27, 2017
    ...Garner, 471 U.S. 1, 7-22 (1985)). "[R]easonableness is always the touchstone of Fourth Amendment analysis," Birchfield v. North Dakota, 579 U.S. ---, ---, 136 S.Ct. 2160, 2186 (2016), and ". . . is generally assessed by carefully weighing the nature and quality of the intrusion on the indiv......
  • State v. Domenge-Delhoyo
    • United States
    • Georgia Court of Appeals
    • July 15, 2016
    ...Domenge-Delhoyo points this court to the United States Supreme Court's recent opinion in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), notes that this court did not mention it, and asserts that it “may have a significant impact on the analysis of the vo......
  • United States v. Manubolu, 1:19-cr-00184-JAW
    • United States
    • U.S. District Court — District of Maine
    • August 10, 2020
    ...Court's decisions in Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016). Def.'s Mot. at 4-5. Mr. Manubolu turns to the decision in United States v. Hutchinson , No. 2:16-CR-168-D......
  • United States v. Hernandez-Mieses
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 30, 2017
    ...allows a warrantless search when an emergency leaves police insufficient time to seek a warrant." Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 2173, 195 L.Ed.2d 560 (2016) (citing Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).Relevant scenarios inc......
  • Request a trial to view additional results
47 books & journal articles
  • DMV proceedings
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 2
    • March 30, 2022
    ...test are a lawful tool for encouraging motorists to cooperate with testing, but Birchfield v. North Carolina (2016) 579 U.S. ___, 136 S.Ct. 2160 held that the threat of jail to coerce submission to a blood draw is unconstitutional. See §7:73 et seq. regarding the interplay between the Fourt......
  • Drunk driving offenses
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • March 30, 2022 element of the proposed statute and that can be a difficult thing to establish. Even Birchf‌ield v. North Dakota (2016) 579 U.S. ___, 136 S.Ct. 2160, observed that some individuals may be “unable to do what is needed to take a breath test due to profound intoxication or injuries.” §1:18 ......
  • Gutting Bivens: How the Supreme Court Shielded Federal Officials from Constitutional Litigation.
    • United States
    • Missouri Law Review Vol. 85 No. 4, September 2020
    • September 22, 2020
    ...(2006) (noting that "the ultimate touchstone of the Fourth Amendment is 'reasonableness'"). (203.) Compare Birchfield v. North Dakota, 136 S. Ct. 2160, 2196-98 (2016) (Thomas, J., concurring in part and dissenting in part) (arguing it is reasonable for the police to administer a warrantless......
  • Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate
    • United States
    • The Georgetown Journal of Law & Public Policy No. 20-1, January 2022
    • January 1, 2022
    ...physician administers the vaccine. 66. See, e.g. , Mitchell v. Wisconsin, 139 S. Ct. 2525, 2534 (2019); Birchf‌ield v. North Dakota, 136 S. Ct. 2160, 2178 (2016); Missouri v. McNeely, 569 U.S. 141 (2013); Schmerber v. California, 384 U.S. 757, 768 (1966) (all ruling that the drawing of bloo......
  • Request a trial to view additional results
1 provisions
  • Chapter 177, AB 2717 – Driving under the influence: blood tests
    • United States
    • California Session Laws
    • January 1, 2018
    ...arrested for one of specified driving-under-the-influence offenses. The United States Supreme Court, in Birchfield v. North Dakota (2016) 136 S.Ct. 2160, held that the Fourth Amendment to the United States Constitution permitted warrantless breath tests incident to arrests for drunk driving......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT