Birchfield v. North Dakota

For years, lawyers in Minnesota have argued about the validity of the Minnesota Implied Consent Law and the corresponding criminalization of refusal to take a blood, breath, or urine test.  In Minnesota, as in many other states, in order to enforce laws against drunk driving, statute establishes that by applying for a driver’s license, you have impliedly consented to a test if there is probable cause to believe that you have been drinking prior to operating the vehicle.[1]  If you are asked to take a test and you refuse to comply, the refusal results in a more serious criminal charges[2] as well as an increased period of license revocation.[3]

The validity and constitutionality of an “implied consent” to any sort of government search may seem suspect.  After all, the fourth amendment of the United States Constitution guarantees, “…the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[4]  However, despite the protections guaranteed in the United States Constitution, Fourth Amendment jurisprudence has carved out many exceptions to the warrant requirement.

One such exception is a search incident to a lawful arrest.  Courts have long held that when a person is arrested, it is constitutionally permitted for law enforcement to conduct a warrantless search of the person and the area in their immediate control.  This exception is based on 1) the need to protect officer safety and 2) preservation of evidence.[5]  Another common exception to the warrant requirement is the doctrine of exigent circumstances.  The exigent circumstance exception allows law enforcement officers to collect evidence via search or seizure without a warrant if the evidence is in danger of imminent destruction.[6]  Both of these exceptions to the warrant requirement have long been used to justify the warrantless collection of a blood, breath, or urine sample following an arrest for drunk driving.

In a recent Supreme Court case, Birchfield v. North Dakota,  the validity of the exceptions to the warrant requirement as applied to the collection of blood, breath, or urine samples in DWI cases as well as the corresponding criminalization of a refusal to comply with testing was addresses.   In a decision released June 23, 2016, the Supreme Court held that the criminalization of a refusal to comply with a blood test was unconstitutional while the criminalization of a refusal to submit to a breath test was constitutional.[7]  The Court further held that the warrantless collection of a breath sample was acceptable under the search incident to arrest exception to the warrant requirement. [8]

This means that, pursuant to the new Supreme Court decision, because a breath test is an exception to the warrant requirement as a search incident to arrest, if you are arrested for DWI, asked to take a breath test, and you refuse, your refusal can, constitutionally, be the basis for a more serious criminal charge.  However, if you are arrested and asked to submit to a blood test, the search incident to arrest exemption to the warrant requirement does not apply and a refusal cannot be criminalized.   If you have recently been charged with a DWI, or with refusal to submit to a chemical test, it is important for you to speak to an attorney about how this recent Supreme Court holding affects your case.  The experienced attorneys at Wilson Law Group will work to ensure that your constitutional rights were respected.


[1] Minn. Stat. Ann. § 169A.51 subd 1

[2] Minn. Stat. Ann. § 169A.20 subd 2

[3] Minn. Stat. Ann. § 169A.52 subd 3

[4] U.S. Const. amend. IV

[5] See Chimel v. California, 395 U.S. 752 (1969)

[6] See Kentucky v. King, 563 U.S. 452 (2011)

[7] Birchfield v. N. Dakota, No. 14-1468, 2016 WL 3434398, at *1 (U.S. June 23, 2016)



[8] Id.