TOPEKA — Contrary to a recent Kansas Supreme Court opinion, the U.S. Supreme Court on Thursday held a Minnesota man did not have a right to refuse a breath test for alcohol and his constitutional rights were not infringed upon when he was criminally punished for his refusal.
“The Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and (William) Bernard had no right to refuse it,” wrote Justice Samuel Alito.
The court determined, by a 5-3 majority, that warrantless breath tests are constitutional but warrantless blood tests are unconstitutional. By extension, criminal penalties for refusing to take a breath test are constitutional but criminal penalties for refusing to have blood drawn are unconstitutional, the court ruled.
In 2012, the state of Kansas amended its statutes on driving under the influence, adding a provision stating that refusal to submit to a breath test is a crime with punishments comparable to those for DUI.
On Feb. 26, the Kansas Supreme Court determined the law was an unconstitutional violation of Fourth Amendment protections from unreasonable search and seizure.
“In essence, the State’s reasons are not good enough, and its law not precise enough, to encroach on the fundamental liberty interest in avoiding an unreasonable search,” Justice Marla Luckert wrote in the majority opinion.
How the U.S. Supreme Court ruling will affect Kansas law remains unclear, according to Attorney General Derek Schmidt, a proponent of criminal punishments for breath test refusal.
“The Kansas Supreme Court has to give us some guidance on where it wants to go from here,” he said in an interview Thursday.
In March, Schmidt joined 17 other attorneys general in asking the U.S. Supreme Court to decide three DUI cases in a way that upheld state laws punishing breath test refusal, calling such laws “critical to the states’ ability to eradicate the frightful ‘carnage’ caused by impaired drivers with ‘tragic frequency’ across the country.”
Schmidt was encouraged by Thursday’s ruling but acknowledged, “it’s not quite as clear as I would have preferred.”
Alito’s ruling centered on the “search incident to arrest” exception in the Fourth Amendment, which allows law enforcement officers to search a person’s body without a warrant after an arrest. This is generally done for two reasons: to protect officers and preserve evidence.
“Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving,” Alito wrote.
Four months ago, that exception was dismissed by Luckert and five other Kansas Supreme Court justices as inapplicable.
“Alcohol in the bloodstream poses no threat to officer safety, and when discussing preservation of evidence ... the reasoning is to prevent destruction of evidence within a suspect’s control,” Luckert wrote, arguing DUI evidence is outside a suspect’s control.
Because the U.S. Supreme Court ruling Thursday was on laws in Minnesota and North Dakota, not Kansas, it falls on the Kansas Supreme Court to sort out the difference between what Schmidt calls “asymmetrical” opinions over whether or not criminal punishments for refusing to take a breath test in Kansas are constitutional.
“It looks, at least in the long term, like the answer is going to be ‘yes,’ ” Schmidt said.
The attorney general has two motions pending before the Kansas court on this matter. He has requested it delay implementation of its Feb. 26 ruling and also reconsider that ruling. In the wake of the U.S. Supreme Court opinion, Schmidt expects one or both of those motions to be acted on soon.
Doug Wells, a DUI defense attorney in Topeka, said “there are still a lot of balls in play” after Thursday’s ruling.
“It resolved a couple issues as it relates to the federal Constitution, but some of it is still up in the air,” Wells said. “I think there’s still more work ahead.”
Patrick Lewis, an Olathe defense attorney, agreed.
“But for the time being, I feel confident that the Kansas refusal statute is unconstitutional and cannot result in punishment for a driver,” he said.
Chris Mann, a Kansas prosecutor and state board chair of Mothers Against Drunk Driving, said the organization is pleased with Alito’s opinion.
“Breath tests are a critical tool for law enforcement officers who are on the front lines in the battle to eliminate the completely preventable crime of drunk driving,” he said.
“The Court recognized that breath tests are minimally invasive and confirmed that driving is a privilege, not a right.”
Three justices dissented from Alito’s majority opinion Thursday. Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed with the majority on the unconstitutionality of blood tests but went a step further, arguing breath tests without a warrant also are unconstitutional.
“I fear that if the (Supreme) Court continues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion,” Sotomayor wrote.
Justice Clarence Thomas took the opposite approach. He agreed with the majority that breath tests are constitutional but argued blood tests are as well.