Considering the Impact and Implications of Birchfield on Intoxicated Driver Prosecutions.

• Author: Lee, Patrick M.

IN THEIR 2016 ANNUAL REPORT, MADD reported that Drunk Driving remains the number one cause of death on American roadways and causes an injury every two minutes. (1) But a new trend is emerging. According to a 2013-2014 National Roadside Survey of Alcohol and Drug Use by Drivers, conducted by the National Highway and Safety Administration, 20% of weekend nighttime drivers tested positive for drugs in their system. (2) While drunk driving fatalities are slowly declining, drugged drivers are rapidly taking their place. In less than 10 years, the percentage of those drivers testing positive for THC in their system increased by 48% from a similarly conducted 2007 study. (3)

Criminal prosecutors across the country tackle impaired driving cases every day in the courtroom. Though these prosecutions can become routine due to volume, the DUI law is dynamic. It is our duty to know this law, to be able to apply the law to each case, and to safeguard the integrity of our prosecutions.

For many years, prosecutors and law enforcement officers have been able to rest comfortably on the legal fiction that implied consent is the same as voluntary consent. The U.S. Supreme Court has solidly disputed this fiction over the last several terms. In doing so, it has reminded us that a chemical test to determine alcohol or drug concentrations in an impaired driver is a search under the Fourth Amendment, regardless of the label our legislatures place on it. Though it may add time and burden to the State and in certain cases even jeopardize our ability to prosecute, we must face the Fourth Amendment and its implications in our DUI investigations. A law enforcement officer must either obtain a search warrant, or be able to clearly articulate an exception to the warrant requirement in order to obtain an impaired driver's bodily fluids. This article will analyze the law for each testing method as well as potential hurdles we face in the ever-changing world of DUI prosecutions.

BREATH TESTS

First, the good news! If your jurisdiction and/or agency relies on breath testing to determine alcohol concentration, you're in luck. In Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), the United States Supreme Court determined that a breath test was a search incident to arrest; therefore, a warrant was not required to either administer the test or criminalize a refusal to provide a valid breath sample. A breath test to determine the alcohol concentration of an impaired driver provides no new constitutional issues for prosecutors in the DUI context.

BLOOD TESTS

For those relying on blood testing for drunk or drugged driving prosecutions, the landscape has become more complicated since the Supreme Court's ruling in Missouri v. McNeely, 133 S.Ct 1552 (2013). In McNeely the Supreme Court determined that a search of a potentially impaired driver was...