Is Warrantless Urine Testing Constitutional? -reasonableness of Warrantless Urine Testing in Cases Involving Driving While Under the Influence of Alcohol or Drugs

• Publication year: 2021

97 Nebraska L. Rev. 860. Is Warrantless Urine Testing Constitutional? -Reasonableness of Warrantless Urine Testing in Cases Involving Driving While Under the Influence of Alcohol or Drugs

Is Warrantless Urine Testing Constitutional? -Reasonableness of Warrantless Urine Testing in Cases Involving Driving While Under the Influence of Alcohol or Drugs

Mariah Haffield

TABLE OF CONTENTS

I. Introduction to Warrantless Urine Testing ............. 861

II. Development of the Law as It Applies to Chemical Testing in Drunk and Drugged Driving Cases ......... 863

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III. Analysis of the Emergency Exception and a Search Incident to Arrest as It Applies to Warrantless Urine Testing ............................................... 875

State v. ThompsonBirchfield Thompson Birchfield

IV. Conclusion ............................................ 888

I. INTRODUCTION TO WARRANTLESS URINE TESTING

An obviously intoxicated individual enters her vehicle and drives away. Within a mile of her destination, a police officer stops her due to a broken headlight. The officer notices her slurred speech and bloodshot, watery eyes, and also detects the smell of alcohol coming from the vehicle. The driver fails standardized field sobriety tests and provides a preliminary breath test that indicates an alcohol concentration above the legal limit. She is arrested and brought to jail. The driver provides a urine sample. This sample is later tested and confirms she was driving while above the legal limit of intoxication. She is charged with driving while under the influence.

Another police officer stops a vehicle for erratic driving. The officer notices that the driver is grinding his teeth, profusely sweating, has twitching of his face and hands, and is using odd speech patterns. The driver fails standardized field sobriety tests, including one designed to assess if a person is under the influence of a controlled substance. A preliminary breath test indicates an alcohol concentration of 0.00%. Believing the driver to be under the influence of a controlled substance, the officer arrests him. The driver provides a urine sample that is later analyzed in a laboratory. Testing reveals the presence of a controlled substance in the driver's urine. The driver is subsequently charged with driving while under the influence.(fn1)

These two illustrations are examples of common cases involving driving while under the influence of either drugs or alcohol and pro-

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vide insight into how such cases are initiated by police officers. As seen in these examples, generally a police officer conducts a traffic stop due to poor driving conduct or unlawful vehicle conditions.(fn2) While interacting with the driver, an officer will develop probable cause to believe the individual is driving while under the influence of drugs or alcohol.(fn3) After arrest, the driver will be asked to undergo a chemical test to detect the presence of alcohol or drugs, refusal of which is a crime.(fn4)

Until recently, the Supreme Court of the United States had not considered the constitutionality of warrantless chemical testing under the Fourth Amendment. With these two cases, the Supreme Court has only considered blood testing and breath testing under the emergency exception to the warrant requirement or as a search incident to a valid arrest.(fn5) While other state courts have considered whether warrantless urine testing is justified under these two doctrines,(fn6) the Supreme Court has not considered the constitutionality of warrantless urine testing. As noted, although urine testing is not the only type of testing conducted in chemical testing cases, this Comment focuses on the constitutionality of warrantless urine testing.

First, this Comment will address the development of the law as it applies to warrantless blood and breath testing.(fn7) Then, this Comment will analyze how the emergency exception applies to warrantless urine testing but ultimately decides it should not fall under this doctrine.(fn8) Next, this Comment will explore the search-incident-to-a-valid-arrest doctrine.(fn9) The search-incident-to-arrest doctrine is an underde-

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veloped area in criminal law, with few courts applying the doctrine to any of the three chemical tests. Even fewer courts have addressed how it applies to urine testing.(fn10) The Minnesota Supreme Court was the first court to consider whether warrantless urine testing is justified as a search incident to a valid arrest.(fn11) Thus, section III.B analyzes the Minnesota case, State v. Thompson.(fn12) This Comment ultimately concludes that warrantless urine testing should be upheld as a search incident to a valid arrest.(fn13)

II. DEVELOPMENT OF THE LAW AS IT APPLIES TO CHEMICAL TESTING IN DRUNK AND DRUGGED DRIVING CASES

Under the Fourth Amendment of the U.S. Constitution, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" unless a search warrant has been issued upon probable cause.(fn14) There are only certain exceptions to the warrant requirement for searches and seizures. One such exception is for exigent circumstances.(fn15) Courts have considered the exigent circumstances doctrine, also known as the "emergency exception" or the "emergency doctrine," in various scopes.(fn16) Some courts refer to the "exigent circumstances" exception as a general exception, which includes other warrant exceptions.(fn17) Other courts, rather than including a variety of exceptions, refer to the "emergency exception" only when there is an immediate threat to a person or property.(fn18) The Supreme Court has considered the emergency exception doctrine in the latter, by viewing exigent circumstances as those where a police officer conducts a warrantless

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search based on the reasonable belief that "there exists a serious potential for the destruction of evidence of a crime should they take the time to procure a warrant."(fn19)

Another justified warrantless search is a search incident to a valid arrest.(fn20) This doctrine allows a police officer to conduct a warrantless search of one who is under a valid custodial arrest.(fn21) Pursuant to this exception, an officer may conduct the warrantless search without probable cause or a reasonable articulable suspicion of criminal activity.(fn22) The search may extend to a suspect's person, as well as the area within the suspect's immediate control.(fn23) This doctrine is not a new justification for warrantless searches but rather, this doctrine has been established for centuries.(fn24)

A. What Are Blood, Breath, and Urine Tests?

Before the types of tests can be discussed, it is important to have a basic understanding of how alcohol and drugs are metabolized in the body. When a person drinks an alcoholic beverage, the liver processes most of the alcohol.(fn25) Ethanol, the alcohol found in alcoholic beverages, is absorbed into the bloodstream during the digestive process.(fn26) A person's alcohol level is thus measured by the weight of the alcohol in a certain volume of blood.(fn27)

There are differences between the metabolization of alcohol and drugs.(fn28) For many drugs, there is a two-phase metabolization process

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during which drugs are brokendown.(fn29) Generally, the liver is the main site of drug metabolization.(fn30) The rate of metabolization for most drugs has a capacity limit.(fn31) The rate changes depending on the drug concentration and the fraction of the metabolizing enzyme sites that are occupied.(fn32) The drug metabolites are the by-products detected in forensic toxicology reports.(fn33)

1. Description of Blood Draws

During a blood draw, a needle is used to obtain a blood sample from a vein located in either the arm or hand.(fn34) The sample is then tested to determine grams of ethanol per deciliter.(fn35) Science has determined that 0.08 grams of ethanol per deciliter of blood equals a blood alcohol concentration of 0.08 percent.(fn36) Drug metabolites are also detectable in a blood sample.(fn37)

2. Description of Breath Testing

When a person is consuming alcohol, some of the alcohol will also pass from the individual's blood to their breath.(fn38) During the breath test, the subject is required to take a deep breath and exhale into a tube connected to a breathalyzer machine.(fn39) The air passes into a chamber where the breath is surveyed by a standardized amount of

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infrared radiation.(fn40) The radiation is absorbed by the ethanol and the machine detects the amount that has been absorbed.(fn41) Blood alcohol content of 0.08 percent is equal to 35 micrograms of ethanol per 100 ml of breath.(fn42) A breath test is unable to detect the presence of a controlled substance in a person's body.(fn43)

3. Description of Urine Testing

After being consumed, alcohol will also dissipate through a person's urine.(fn44) Drug metabolites will also be passed into a person's urine.(fn45) Once collected, a urine sample is sent to a toxicology laboratory, where tests will screen for drug metabolites and ethanol.(fn46) Such tests may include immunoassay, gas chromatography, or gas chroma-tography/mass spectrometry.(fn47) An immunoassay is used to initially detect broad drugs groups, like barbiturates or opiates.(fn48) The more specific gas chromatography/mass spectrometry test is then used as a confirmatory test that will also identify the...