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Do I have to submit to a breath test after DUI arrest?

Recently on our DUI forum a user asked, “I heard that the Supreme Court made a new ruling for DUI testing. I am confused and want to know when I have the legal right to refuse to take a breathalyzer test.”

Last week the US Supreme Court made a new ruling. They have decided that while police officers may require drivers who have been arrested for driving under the influence to take a breathalyzer test without a warrant, a warrant is required for a blood test.

The decision was made after reviewing three cases which were consolidated as Birchfield v. North Dakota. At question was whether or not the three men in the three separate DUI cases were legally prosecuted or threatened with prosecution for refusing a blood or breath test.

Although the court was split 5-3 decision, with Justice Samuel Alito writing the opinion and Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Elena Kagan joining him, the court ultimately ruled that a warrant-less breath test was okay given that obtaining a breath test was not an invasive procedure.

According to the court "Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving," Alito wrote. "As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation."

Supreme Court Justices and DUI decision

Two justices disagreed with the decision, with Justices Sonia Sotomayor writing for herself and Justice Ruth Bader Ginsburg. Sotomayor argued that warrants should be required in both blood and breath cases. Justice Clarence Thomas also partially dissented arguing that a warrant should not be required to obtain blood or breath evidence after a valid DUI arrest.

According to Sotomayor’s dissenting opinion she believed that this move by the court was evidence of further erosion of the Fourth Amendment. "This court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement," Sotomayor wrote. "I fear that if the court continues down this road, the Fourth Amendment's warrant requirement will become nothing more than a suggestion."

Drunk driving is a serious problem

Drunk driving has killed hundreds of thousands of people throughout the United States over the last fifty years. State, federal and local authorities continuously strive to find the best way to lower the incidence of drunk driving.

One of the most common methods has been to increase the severity of DUI fines and penalties, as well as criminalizing the refusal to submit to a warrantless chemical test of a driver’s breath after a DUI arrest.

While the court’s ruling validated the notion of implied consent for a warrantless breath test, states will have to review their policies and laws with regards to levying criminal penalties for refusing to submit to a warrantless blood test.

"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," Alito wrote.

Bottom Line:

Law enforcement officers have new authority to make sure that they collect enough evidence against you after a DUI arrest to solidify their DUI case against you. If you have been arrested for DUI and think that you will avoid submitting to a breath, think again. The Supreme Court just made sure of that.

(Read more: - DUI Law )

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