I blame the unseasonably warm weather, perhaps the election season circus, or possibly the fact other cases before the Supreme Court tackle sexier issues like the separation of powers or the enforceability of voting rights, for the reason more coverage is necessary on a fundamental privacy issue currently before the court in Birchfield v. North Dakota.

The case raises the critical question, whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. Immediately, I am confronted by challenges to individual liberty, biomedical ethics, objective expectations of privacy and even the integrity of the body itself. For this analysis I will differ to the wisdom of the highest court. In the interest of keeping our readers informed and keeping this essay short, instead what I would like to examine is exactly what is being asked of the court.

First, examine the actors involved, ‘the State’ and a ‘person’. This tells us that we may be examining protections protected by the Bill of Rights. Procedural history proves this assumption correct; this is an action of the State, simply meaning government in its broadest sense, against a person, meaning all those protected by the Bill of Rights.

Second, what does the State want to do exactly? The State in this instance wants to criminalize a behavior. No real red-flags here, most people recognize the essential function of government to criminalize morally repugnant or otherwise socially destructive behavior.

It is the targeted behavior that sends up the red flags and sets the stage for the controversy. The ‘would be’ criminal behavior is the refusal to take a chemical test. The pertinent North Dakota statute reads, “chemical test, or tests, of the individual’s blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine,…” This leaves us with a criminal charge for refusing to submit to a blood, breath, or urine testing at the request of law enforcement.

This isn’t unusual and most jurisdictions criminalize this refusal in a number of ways under a theory that wrongdoers should not be allowed an advantage by refusing to assist the State in its evidence gathering. The rationale of these laws is that implicit in the issuing of driver privileges is the implied consent to chemical tests necessary to prevent and prosecute drunk or otherwise impaired driving. The chemical tests and implied consent only become problematic because of the lower, Supreme Court of North Dakota holding that the implied consent is also present in situations where there is no warrant.

Warrants protect people and their paper, from unreasonable searches and seizures. What makes this question significant is the fact that taken broadly, the Supreme Court of North Dakota would approve of criminalizing constitutionally protected behavior. Refusing warrantless searches (make no doubt that drawing blood is indeed a search implicating 4th Amendment protections) is widely held as constitutional.

Best regards
und viele Grüße aus Charlotte
Reinhard von Hennigs
www.bridgehouse.law