The Law Offices of John Phebus

SCOTUS hears arguments concerning warrantless tests

Arizona motorists who are suspected of driving while intoxicated and refuse to submit to a toxicology test may lose their driving privileges for a period of time, but 13 states have laws that make such refusal a criminal offense as well. These laws have been challenged by drivers in North Dakota and Minnesota, and the lawsuits they filed are now being argued before the U.S. Supreme Court. On April 20, the nation's highest court weighed arguments that warrantless breath tests were unconstitutional against claims from the states involved that striking down the laws would lead to more drunk driving deaths.

Justice Anthony Kennedy seemed sympathetic to the arguments made by the attorneys representing the states involved, and he pointed out that criminal penalties were not all that different to the civil sanctions that motorists in other parts of the country face for refusing to submit to a breath test. However, several justices asked why obtaining a search warrant first was such an obstacle for police. Observers said that the justices were surprised to learn that most breath tests were conducted in police stations rather than at the site of traffic stops.

Justice Stephen Breyer said that calling for a warrant seemed like little more than a formality if the driver concerned was already at a police station to be tested. However, Justice Elena Kagan pointed out that a breath test is a minimally invasive procedure. Legal experts came away from the proceedings believing that the court was searching for a compromise. A final decision is expected to be made in June.

Motorists facing drunk driving charges often have little prior experience of the criminal justice system, and refusing to submit to a breath test may sometimes reflect fear rather than guilt. Criminal defense attorneys will likely understand this, and they may urge prosecutors to treat defendants with no previous record more leniently.

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