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On Behalf of | Nov 12, 2018 | Firm News

A driving under the influence conviction can have devastating effects on an individual.  It could mean a driver’s license suspension, fines, increased insurance costs, jail time, and loss of employment.

Invariably, DUI drivers are not popular with most citizens of the State of California, our Country, and rightly so.  Driving under the influence of alcohol or drugs is an inherent danger to human life.  With organizations like MADD; DUI is a hot political issue and in the court’s of law.

The States and the Federal Government have a “paramount interest . . . in preserving [public highway] safety,” See Mackey v. Montrym, 443 U. S. 1, 17; and States have a compelling interest in creating “deterrent[s] to drunken driving,” a leading cause of traffic fatalities and injuries, id., at 18.

But, we live in the United States of American.  We have our “Constitution” with it’s Amendments that protect citizen’s “individual rights.”  Our Constitutional rights are in place to protect us from governmental oppression and abuse.

One of the “rights” citizens enjoy is the right to “privacy” under the U.S. Constitution’s 4th and 14th Amendments.  A citizen is presumed “innocent” until proven guilty. Procedural and Substantive Due Process rights are in place to protect a defendant charged with a crime.

Recent law on the issues of DUI have held that if the police seek a blood sample of a defendant’s Blood Alcohol Content (BAC); there may be circumstances that require the police to seek a warrant in order to seize the evidence.  This article will discuss the recent U.S. Supreme Court decisions on the requirements of police in obtaining a search warrant in order to seize a defendant’s blood sample  for a criminal prosecution.


Birchfield v. North Dakota, 579 U.S. ___ (2016), was a case in which the Supreme Court of the United States held that the search incident to arrest doctrine permits law enforcement to conduct warrantless breath tests but not blood tests on suspected drunk drivers.

Birchfield was a consolidation of three cases: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. Birchfield was charged with violation of a North Dakota statute for refusing submission to a blood alcohol content testing; Bernard was charged with a violation of a Minnesota statute for refusing submission to a breath alcohol testing; Beylund underwent a blood alcohol test consistent with North Dakota’s implied consent law and challenged the constitutionality of that law after an administrative hearing based on the test results led to the revocation of his license.


The Fourth Amendment to the U.S. Constitution provides: ‘

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The “ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U. S. 398, 403 (2006).

In Missouri v. McNeely, 569 U.S. 141 (2013), the Court held “the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample” but the court “did not address any potential justification for warrantless testing of drunk driving suspects, except for the exception ‘at issue in the case,’ namely, the exception for exigent circumstances”.

The issue before court was how the “search-incident-to-arrest doctrine applies to breath and blood tests.”  Is warrantless alcohol testing incident to drunk driving arrests to determine blood alcohol content a violation of the Fourth Amendment?


The Court held that both breath tests and blood tests constitute a search under the Fourth Amendment. The Court then proceeded to analyze both types of tests under the search incident to arrest doctrine, weighing on the one hand “the degree to which it intrudes upon an individual’s privacy” and on the other hand “the degree to which it is needed for the promotion of legitimate governmental interests.” Applied to breath tests, the Court concluded that breath tests do not implicate significant privacy concerns. Blood tests, on the other hand, are significantly more intrusive. Turning to the government’s interest in the tests, the Court concluded that serves the very important function of providing an incentive to cooperate in alcohol testing. Weighing these interests, the Court concluded that requiring breath tests is constitutional; however, requiring blood tests is not, as the goal of traffic safety can be obtained by less invasive means (such as breath tests).

In the majority opinion, in addressing the limits of implied consent laws, the court stated that while their “prior opinions have referred approvingly to the general concept of implied-consent laws” 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” and “that motorists could be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving”.

Here is the High Court’s reasoning in Birchfield relying on Skinner v. Railway Lab. Execs. Ass’n., 489 U. S. 602 (1989):

(1) Breath tests do not “implicat[e] significant privacy concerns.” Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. Requiring an arrestee to insert the machine’s mouthpiece into his or her mouth and to exhale “deep lung” air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath a suspect’s fingernails, Cupp v. Murphy, 412 U. S. 291. Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government’s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. Pp. 20– 22.

(2) The same cannot be said about blood tests. They “require piercing the skin” and extract a part of the subject’s body, Skinner, supra, at 625, and thus are 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. That prospect could cause anxiety for the person tested. Pp. 22–23.

Because securing a warrant before a search is the rule of reasonableness, the warrant requirement is “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967). To determine whether to “exempt a given type of search from the warrant requirement,” this Court traditionally “assess[es], on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 9) (internal quotation marks omitted).

The defining feature of the exigent circumstances exception is that the need for the search becomes clear only after “all of the facts and circumstances of the particular case” have been considered in light of the “totality of the circumstances.”  Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 5) (quoting Kentucky v. King, 563 U. S. 452, 460 (2011)). 569 U. S., at ___ (slip op., at 8).

The High Court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement. See Florida v. Wells, 495 U. S. 1, 4 (1990) (suppressing evidence where supposed “inventory” search  was done without standardized criteria, suggesting instead “‘a purposeful and general means of discovering evidence of crime’”). If the simple collection of evidence justifies an exception to the warrant requirement even where a warrant could be easily obtained, exceptions would become the rule. Ibid.

The High Court ruled in favor of Birchfield who was prosecuted for refusing a warrantless blood draw and ruled against Bernard who refused a warrantless breath test. Beylund, on the other hand consented to a blood test after police advised him that he was required to do. The court therefore remanded Beylund’s case back to the state court “to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.” The Supreme Court of North Dakota court subsequently avoided the issue by holding that, even assuming the consent was involuntary, the Exclusionary Rule does not apply in the administrative hearing context and thus affirmed suspension of his license for testing over the prohibited level set forth in the implied consent / administrative license suspension statute.


By driving in California, you are presumed to have consented to chemical testing for blood alcohol levels (“BAC”) and/or drugs if you are lawfully arrested for DUI. This is known as California’s “implied consent” law.  See California Vehicle Code 23612(a) (1), Implied consent to chemical blood or breath testing for DUI; See also California Vehicle Code 23612 (a)(2)(B).

You may not refuse a post-arrest chemical test without serious legal consequences. However, a pre-arrest breath test is different. There is no penalty for refusing to take a PAS breath test unless you are under 21 or on probation for a prior DUI conviction.

If you do agree to a PAS test, however, the results of the test can be used to help convict you of a DUI.5 Thus we do not recommend to agreeing to a preliminary breath test unless you are under 21 or on DUI probation.

After you have actually been placed under arrest, you may not refuse a DUI breath test without consequences, under California’s “implied consent” law. This applies even if you already submitted to a preliminary alcohol screening (PAS) test.

This rule traditionally applied to both breath and blood tests in California. But in 2016, the Supreme Court of the United States issued the above decision called Birchfield v. North Dakota.  Birchfield held that it is unconstitutional for a state to make it a crime to refuse a blood test without a lawful warrant.

California, in contrast, just imposes additional penalties on DUI defendants for chemical test refusals. So it remains for courts to decide if this is also unconstitutional–and thus if California’s “implied consent” law cannot be applied to blood tests.

You do not have the legal right to refuse a post-arrest DUI chemical test on the basis that you think you have been wrongfully arrested. But if the court later finds that your traffic stop or arrest were in fact unlawful, the charge will be dismissed…even if the test indicates that you were intoxicated.

There are basically two potential consequences of refusing to take a post-arrest DUI blood or breath test in California.

First, if you are eventually convicted of DUI, you will face enhanced penalties for your chemical test refusal.

Second, you will automatically lose your driver’s license for some period of time after refusing to a take a DUI chemical test.  If you go to trial and are convicted of a chemical refusal, you face enhanced penalties. These are in addition to and consecutive to your underlying sentencing for a California DUI.

If you refuse to submit to a DUI chemical test, the DMV will automatically suspend your license.

You have ten days following your arrest to request a California DMV hearing to contest that suspension. Doing so may postpone your suspension, pending the outcome of the hearing.

If your DUI case is dismissed, you may be entitled to have a second DMV hearing to try to get your suspension/revocation for a chemical test refusal lifted if, say, because of lack of evidence. However, the DMV is not required to follow the D.A.’s or the court’s lead. The D.A. is concerned with whether there is enough evidence to convict you of a DUI beyond a reasonable doubt.

But the DMV hearing is an administrative hearing, rather than a criminal trial. The DMV need only prove that it was more likely than not that you improperly refused a DUI chemical test.

Even a plea of guilty or “no contest” to a wet reckless or any lesser offense will not reverse a DMV license suspension/revocation for a DUI chemical test refusal. This is so even if the prosecutor drops the DUI and test refusal charges.

For the last several decades, our Nation has seen an erosion of an individual’s rights created by the Framers of the U.S. Constitution; one that is of great concern to this writer.  A bodily intrusion invades a citizen’s right to privacy.  Circumstances may not create an “exigency” alleviating the need for police to obtain a warrant to seize a blood sample.  If you are facing a DUI charge, you need a competent legal advocate and attorney on your side to protect your legal rights.

Robert Rodriguez has represented defendants in dozens of DUI cases and including misdemeanor and felony criminal matters including bank robbery, assault with a deadly weapon, burglary, motor vehicle theft, grand theft, felony driving under the influence, felony domestic violence, felony drug possession and sales, 3-Strikes cases, criminal appeals, juvenile criminal court, and matters under the Sexually Violent Predator Act (SVPA).

Robert Rodriguez was a sworn California Police Officer in Stockton California and was trained and certified as a Drug Recognition Expert by the California Highway Patrol to provide expert court testimony.  Robert Rodriguez investigated and was involved in close to 500 criminal matters involving DUI, drunk in public, and being under the influence of a drugs.  Robert Rodriguez now represents DUI defendants in court.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.