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Police Need Warrant to Take Blood, Not Breath, Says Supreme Court

By Ephrat Livni, Esq. on June 29, 2016 | Last updated on March 21, 2019

If you are stopped by the cops for driving under the influence and they ask you to take a test, do you have to accept? According to a United States Supreme Court decision issued late last week, police need a warrant to take your blood, but not for your breath.

The case, Birchfield v. North Dakota, examines three different refusal cases in state courts. Let's consider the decision and some dissenting opinions.

Compromise Decision

Three defendants were stopped by police for driving under the influence, asked to take a test, and refused. Two were asked for blood and one was asked for breath. In a 5-3 ruling, the high court noted that blood tests are significantly more intrusive than breathalyzers and reversed the conviction for the two men who refused a blood draw but not for the man who refused to blow for a breathalyzer. The majority of the Supreme Court found the request for breath to be a reasonable search without a warrant.

A Range of Dissents

Three justices dissented, disagreeing with the majority. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsberg, wrote that she would have imposed the warrant requirement on all tests, blood and breath. The partial dissenters expressed displeasure at the erosion of Fourth Amendment protections. Justice 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."

Meanwhile, Justice Clarence Thomas, on the other end of the spectrum, would not have required a warrant at all. He would have gone the other way and believed no warrant was needed if police seek blood or breath, based on a Fourth Amendment exception that could have applied to all three refusals.

A Tough Topic

The range of responses among the justices shows how complicated the topic of warrantless search is. According to Orin Kerr, an expert on this area of the law, "This was a really tricky Fourth Amendment case." Kerr seemed satisfied with the Court's decision, writing, "I think the majority did a pretty good job dealing with a very hard problem."


If you have been charged with DUI or any other crime, don't delay. Speak to a lawyer today. Many criminal defense attorneys consult for free or a minimal fee and will be happy to assess your case.

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