top of page

The Supreme Court just changed DUI laws across the country: Birchfield v. North Dakota.

Recently, the U.S. Supreme Court decided a trio of cases collectively referred to as Birchfield v. North Dakota (136 S. Ct. 2160). I actually wrote about Birchfield a few months ago when the oral argument occurred and I remarked that the decision could have a remarkable impact on DUI laws across the country. (Blog) Now that the decision has been passed down, Birchfield has forever changed the legal landscape.

In Birchfield v. North Dakota, the Supreme Court considered whether a State may criminalize a driver’s refusal to submit to a test to measure his blood alcohol content (BAC). These cases occurred in States that have implied-consent laws that criminalize the refusal to submit to a test when arrested. These laws basically state that when a motorist chooses to drive on a highway, they impliedly agree to submit a BAC sample when requested.

The Birchfield decision held that motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on a refusal to submit. The Court found that there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

The three separate cases that Birchfield v. North Dakota addressed each had small differences that the Court sought to differentiate:

  • Case #1 dealt with a breathalyzer sample;

  • Case #2 with a blood test and;

  • Case #3 with a defendant who refused to give any sample (breath or blood).


The Court found that no warrant was needed when an officer requested a breath test during a search for a DUI arrest. The Court’s reasoning was that breath tests are significantly less intrusive than blood tests and, in most cases, adequately serve law enforcement interests. Essentially, the Court found that “deep lung” air is not a part of the body, and so obtaining a sample of air only entails a “minimum of inconvenience.”

Now, the Attorney in me would be remiss if I did not stress that the officer still needs probable cause to arrest and request a breath sample. If the officer does not have a justifiable reason to make the arrest, he is not permitted to request the sample. I have won many cases that hinged on this probable cause element – i.e. the officer did not have probable cause to arrest in the first place so the arrest, and all after-acquired evidence, were thrown out.

Blood Test

Conversely, in the blood sample case, the Supreme Court held that a warrant is required when requesting a blood test. The Court held that, unlike breath, blood is a part of the body and requires “piercing the skin” to extract that part of the subject’s body. Thus, it is significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. And, because a warrant was not obtained in this case and criminal charges were threatened for a refusal, the matter was sent back to the lower courts to re-evaluate the defendant’s decision to give the sample.


Finally, in the third case, the defendant was criminally prosecuted for refusing a blood test. The police did not obtain a warrant to test the defendant’s blood, they just simply charged him based on his refusal. Now the Fourth Amendment states that police may not conduct an unreasonable search and seizure*, and here the search that he refused could not be justified as a search incident to his arrest or on the basis of implied-consent. Because there appeared to be no other basis for a warrantless test of his blood, he was threatened with an unlawful search and unlawfully convicted for refusing that search. Thus, his conviction was overturned and the case remanded to the lower court.

If you would like to read the decision for yourself, you may access it here: Birchfield v. North Dakota, 195 L. Ed. 2d 560, 2016 U.S. LEXIS 4058, 136 S. Ct. 2160, 84 U.S.L.W. 4493, 26 Fla. L. Weekly Fed. S 300 (U.S. 2016)

If you or someone you know was charged with a crime, contact Attorney Michael F. Niznik at 267-589-0601 for a free case evaluation.

* Absent certain exceptions.

Featured Posts
Recent Posts
Follow Us
  • Facebook Basic Square
  • Twitter Basic Square
bottom of page