Written By: Darcy Townsend
Senior Associate Editor, The American Journal of Trial Advocacy
Driving is an American privilege that we exercise by agreeing to abide by the laws governing road safety. Every state has implied consent statutes designed to penalize motorists who refuse to submit to Breathalyzer or blood testing when law enforcement officers have reason to believe that there has been violation of road safety laws. The only way to determine that a person’s blood alcohol concentration (BAC) exceeds the legal limit is to perform a test, either by Breathalyzer test or taking blood. The limit at which an individual may drive under the influence throughout the United States is a BAC level of .08 or higher. Prosecutors may still charge motorists for driving under the influence without evidence of their BAC; without the results of a BAC test, the prosecutor must prove impairment of faculties, whereas a BAC that registers .08 or higher is illegal per se. To incentivize motorists to submit to a test, most implied consent statutes suspend or revoke drivers licenses as a penalty for refusal to comply. License suspension or revocation falls under the category of a civil penalty; however in Birchfield v. North Dakota, the Supreme Court dealt with a state implied consent statute that reached beyond the civil penalties for noncompliance.
More severe consequences for drunk drivers gave birth to stricter implied consent statutes. In recent decades, states have begun to crack down on drunk drivers by imposing harsher consequences for incremental levels beyond the .08% limit and increased sentences for repeat offenders. Faced with the choice between driver’s license suspension and potentially harsher penalties for registering a high BAC, drivers often refused testing altogether. To remove the incentives for refusing testing, several states have enacted statutes that criminalize a refusal to consent to BAC testing after a lawful arrest for impaired driving. The issue before the Court in Birchfield involved whether such implied consent statutes that impose considerably higher penalties would violate one’s constitutional right against unreasonable searches under the Fourth Amendment.
The Court in Birchfield struck down implied consent statutes that criminalized refusal to submit to blood testing. However, refusal to submit to a Breathalyzer test is distinguishable and the Court’s analysis does not extend to implied consent statutes penalizing only breath test refusals under threat of criminal charges. The Court explains that breath tests are neither intrusive nor inconvenient with regard to the Fourth Amendment, thus a warrantless search incident to arrest of breath does not violate the protections of the Fourth Amendment. Additionally, Birchfield does not shake the foundation of previous cases regarding breath samples. The Court highlights two primary factors that distinguish blood draws from breath samples. First, blood tests require the puncturing of the skin, which the Court finds to be substantially more invasive and painful than a breath test. Second, the Court was concerned with the scope of information that blood samples provide, whereas breath tests limit the scope of information to a person’s BAC at a specific point in time. The Court concluded that police cannot administer warrantless blood tests as a search incident to a lawful arrest. Furthermore, state laws criminalizing an individual’s refusal to submit to such testing are unconstitutional because “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” The states that codify refusal of blood test submissions will need to modify their statutes and either limit the scope of implied consent to breath test results or limit the refusal penalties to administrative fines and consequences.
State statutes that limit punishments for refusal to administrative consequences, such as civil fines and license suspension, remain intact following the Birchfield decision. Surrendering one’s driver’s license is by no means an easy penalty, although comparatively light to facing a separate criminal charge. The necessity for daily, independent transportation makes license suspension cumbersome for many individuals to adhere to, and all too tempting to disregard. Driving with a suspended or revoked license is a criminal offense in many jurisdictions, even in states that do not criminalize refusal itself. Drivers should be wary that failure to observe administrative consequences of refusal could lead to criminal charges later. Even so, the Birchfield court stated that administrative penalties alone do not effectively deter drunk driving and laws that make refusing to submit to BAC testing a crime “serve a very important function.” Ten states are in the minority, having statutes that criminalize refusal for a blood test: Alaska, Florida, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont, and Virginia. Each of these state statutes now requires modification as a result of the Supreme Court’s holding in Birchfield. These state statutes should now only criminalize refusal to submit to a BAC test and may no longer criminalize refusal to submit to a blood test.
 Birchfield v. North Dakota, 136. S. Ct. 1260, 1266 (2016).
 Id. at 2166.
 DUI & DWI, DMV.Org, http://www.dmv.org/automotive-law/dui.php (last visited Dec. 8, 2016) (“All 50 states have now set .08% blood alcohol concentration (BAC) as the legal limit for driving under the influence (DUI) or driving while impaired (DWI). For commercial drivers, a BAC of .04% can result in a DUI or DWI conviction nationwide.”).
 John McCurley, Proving a DUI AT TRIAL, NOLO http://dui.drivinglaws.org/resources/the-dui-case/proving-a-dui-at-trial.html# (last visited Dec. 8, 2016) (“To prove a driver was under the influence, the prosecution generally has two options: proving the driver had a blood or breath alcohol concentration (BAC) of .08% or more (an (sic) “per se” DUI), or showing that the motorist was actually impaired by drugs or alcohol.”).
 Birchfield, 136 S. Ct. at 2166.
 Id. at 2167 (dealing with a North Carolina and Minnesota laws that criminalize refusal to submit to testing as a separate charge from driving under the influence).
 Id. at 2169.
 Id. at 2169-70.
Id. at 2167.
 Id. at 2186.
 See id. at 2184-86 (“It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test.”).
 Id. at 2185 (“[A] breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.”).
 Id. at 2176-77.
 Id at 2177-78.
 Birchfield, 136 S. Ct at 2185.
 Id. at 2186.
 Id. at 2185.
 See, e.g. Ala. Code § 32-6-19 (West, Westlaw through the end of the 2016 Regular Session and through Act 2016–485 of the 2016 First Special Session) (specifying a misdemeanor conviction, fines, and jail time as penalty for driving on a suspended license); Mich. Comp. Laws Ann. § 257.904 (West, Westlaw through P.A.2016, No. 327 of the 2016 Regular Session, 98th Legislature) (punishing driving on a suspended or revoked license as a misdemeanor).
 Birchfield, 136 S. Ct at 2179.
 See Alaska Stat. Ann. § 28.35.031 (West, Westlaw from the 2016 2nd Reg. Sess. of the 29th Legislature) (“Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction.”); Fla. Stat. Ann. § 316.1939 (West, Westlaw through the 2016 Second Regular Session of the Twenty-Fourth Legislature) (criminalizing a refusal for anyone who has a prior refusal to submit to a lawful test on record); La. Stat. Ann. § 32:661 (West, Westlaw through the 2016 First Extraordinary, Regular, and Second Extraordinary Sessions) (“[R]efusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime . . . . “); Minn. Stat. Ann. § 169A.20 (West, Westlaw through the end of the 2016 Regular Session) (“It is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine . . . .”); Neb. Rev. St. § 60-6,197 (West, Westlaw through the end of the 104th 2nd Regular Session (2016)) (“[R]efusal to submit to such test or tests is a separate crime for which the person may be charged.”); N.D. Cent. Code Ann. § 39-20-01 (West, Westlaw rough the 2016 Special Session of the 64th Legislative Assembly and measures passed in the November 8, 2016 election) (“[R]efusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence . . . .”); 31 R.I. Gen. Laws Ann. § 27-2 (West, Westlaw through Chapter 542 of the January 2016 session) (commanding civil fines and license suspension for the first refusal and a misdemeanor charge and jail time for subsequent refusal convictions within five years); Tenn. Code Ann. § 55-10-406 (West, Westlaw through end of the 2016 Second Regular and Second Extraordinary Sessions of the 109th Tennessee General Assembly) (imposing a fine and a mandatory jail or workhouse sentence for refusal in addition to license suspension); Vt. Stat. Ann. 23, § 1202 (West, Westlaw through the laws of the Adjourned and Special Sessions of the 2015-2016 Vermont General Assembly (2016)) (providing that a driver may be charged with criminal refusal if he or she “has previously been convicted of a violation of section 1201 of this title”); Va. Code Ann. § 18.2-268.3 (West, Westlaw through End of the 2016 Reg. Sess.) (classifying an unreasonable refusal within ten years of a prior DUI conviction or another refusal as a misdemeanor offense).