On Friday the United States Supreme Court issued a decision in a DUI case that many criminal defense attorneys have been closely following. The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota. What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer and a blood test when requested to do so by the police. There is no such law in Illinois. A refusal to take a breathalyzer or blood test can result in the suspension of your diving privileges but is not an actual crime in Illinois. However, 13 other states make a refusal to submit to a breathalyzer or blood test a crime. Both North Dakota and Illinois have “implied consent” laws which state that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested by the police. Illinois warns you that failure to consent could result in the suspension of your driving privileges while North Dakota warns you that failure to consent could result in criminal prosecution. Refusing to submit to a breathalyzer or a blood test is not a crime in Illinois. The refusal to submit to such testing can only result in the suspension of your license for a period of time, usually one year, if this is your first DUI. Sometimes, refusing to submit to a breathalyzer or blood test could benefit the underlying DUI case making it harder for the state to prove their case with test results, but will not stop the suspension of your driver’s license. Refusing to submit to a breathalyzer or a blood test is a misdemeanor in North Dakota. By making it a crime to refuse to submit to a breathalyzer or a blood test, a driver would be more likely to consent to such testing, thereby making it easier for the state to prove guilt in an underlying DUI prosecution.
In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test. The majority opinion was written by Justice Alito who held that “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.” Since it’s considered a search incident to a lawful arrest, a warrant is not needed.
Since the case involved 3 separate DUI arrests, there were 3 different outcomes. One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned. The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld. The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial in light of the holding that a warrant is required for a blood test.
This is clearly a split decision in which the Justice’s bargained with each to come up with a consensus decision. It does seem unfair to criminally prosecute people for exercising their constitutional right to not incriminate themselves and to not have to submit to a search. Imposing criminal penalties upon people who choose to remain silent seems unfair.
James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in DUI cases. If you have a DUI case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.
Birchfield v. North Dakota, Supreme Court Docket No: 14-1468, 576 US___(2016).