WASHINGTON — All states to some extent say that motorists suspected of drunken driving can lose their licenses by refusing to submit to an alcohol test.
But North Dakota, Minnesota and a handful of other states go further and make it a crime to refuse to submit to the test.
The Supreme Court on Wednesday appeared first to be on one side of the question, then on the other, about whether the Constitution allows that.
Washington lawyer Charles Rothfeld, representing the objecting drivers, said states cannot force people to give up their Fourth Amendment protection against warrantless searches.
“The fundamental problem with the statutes at issue in these three cases is that they make it a criminal offense to assert a constitutional right,” Rothfeld told the justices. “Under the laws of North Dakota and Minnesota, a person who is stopped on suspicion of impaired driving is obligated to take a warrantless chemical test to determine the alcohol content of their blood.”
But Rothfeld quickly faced skeptical questioning. “If the state can impose a civil administrative sanction, why couldn’t it also impose a criminal sanction?” asked Justice Anthony Kennedy.
Justice Samuel Alito suggested that Rothfeld had it wrong.
“One way of looking at what the state is doing is not to criminalize the assertion of a constitutional right, but to criminalize reneging on a bargain,” Alito said. “And the bargain was, we give you a license to drive, and in exchange for that, you consent … to a blood-alcohol test under certain circumstances. And if you renege on that bargain, then that’s what’s criminalized.”
But the tables turned when lawyers for the governments presented their cases, to the extent that Alito predicted doom for them.
They came under such intense questioning from Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer that Alito offered to translate for Kathryn Keena, assistant Dakota County attorney from Hastings, Minnesota.
“Justice Sotomayor is assuming that you’re going to lose. So she wants to know what your reaction is to that,” Alito said to laughter in the courtroom.
“I don’t like it,” Keena replied. “I don’t like it one bit.”
The justices — pressing Keena; Thomas McCarthy, representing North Dakota; and Deputy Solicitor General Ian Gershengorn, representing the federal government — questioned why police could not obtain warrants before administering the tests.
That can be done over the phone and can take as little as five minutes in some places, they said.
“If you could get a warrant easily in every case, I mean, then I’m struggling to figure out what your interest is in having the kind of law that you have,” Kagan said.
Added Kennedy: “You’re asking for an extraordinary exception here. You’re asking for us to make it a crime to exercise what many people think of as a constitutional right.”
But Gershengorn said that it’s not as easy to get a warrant as some think and that time is essential when trying to preserve evidence.
“I think it’s critically important that this court not assume that warrants are available 24/7,” Gershengorn said. “That is not the case in the real world.”
For instance, Gershengorn said, differences among jurisdictions mean that in the Washington area, officers of the U.S. Park Police can get warrants quickly in Maryland but have more difficulty in Virginia and the District of Columbia.
In 2013, the court ruled that police officers generally must try to get warrants before forcing uncooperative drunken-driving suspects to submit to blood tests. Such tests are performed in hospitals, and the court said a warrant would generally be attainable in the time it took to transport a suspect there.
It might not help the governments that their lawyers said breath tests are usually conducted at precincts rather than roadside. Some of the justices suggested that also would allow time to secure warrants.
Kennedy and Breyer seemed to think there might be a compromise based on the kinds of tests. Blowing into a tube seemed far less intrusive than a blood test, Breyer said.
“Why isn’t there a big difference between a blood test and a Breathalyzer?” Breyer asked.
But Rothfeld said the intrusion was the same.
“You’re inserting a tube into a person’s mouth to get them to expel something from deep within their body so that it can be tested by the government,” he said.
The cases are Birchfield v. North Dakota, Bernard v. Minnesota and Beylund v. Levi.
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