The Supreme Court considers whether breath tests require a search warrant

Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).

Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.

The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment.   Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test.  The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine.  In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test.  As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.

The argument involved interesting questions from most of the Justices.

For example:  Justice Breyer asked: “Because I see ­­ I see ­ the breath part is the part that sort of now gets me. If you’re taking them to the police station anyway to do the breath test, and it just requires a phone call to get the warrant, what’s the problem?”

Justice Kagan asked: “The Chief Justice’s opinion, even that said ­­ and this was with respect to a blood test. But the Chief Justice’s opinion said, look, if there’s 20 minutes between the time that you’re stopped and the time that we can get you to a hospital to get a blood draw, and you can get a warrant in that 20 minutes, then yes, you have to go get a warrant in that 20 minutes.  So at the very least, why wouldn’t that be the case? You know, if ­­ if you’re ­­ if all of these things ­­ I mean, I have to say when I originally thought about this case, I had in my mind roadside stops. But in all of these cases you’re actually driving these people to a station house. So why can’t you get a ­­ at least what the Chief Justice said in McNeely, which is, okay, if you can get a warrant within that time, you have to get a warrant within that time.”

Justice Sotomayor asked: “Why? You change the law. I mean, you know, it’s as if you want us to create an exception to the Fourth Amendment, and a very drastic one, to give someone the right to say yea or nay without a warrant, but we don’t permit people to say yea or nay when a warrant is present. If they don’t comply they’re charged with obstruction, and there will be consequences to obstruction.”

Justice Kennedy asked: “You’re asking for an extraordinary exception here. You’re asking for us to make it a crime to exercise what many people think of as a constitutional right. There is some circularity there. And you could point to no case which allows that. So we have to show that there is exceptions there is a necessity for the exception, and you’re just not answering the question about whether or not, in the wake of our recent decisions over the last three or four years, warrants have been expedited in many cases and why; and if they have been, why that isn’t an answer to your argument.”

A decision is likely by the end of June.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
(fax) 301-441-4652
Dean, National College for DUI Defense


Author: 2015 update to Maryland Evidence: State and Federal by Professor Lynn McLain


“Patience, Perseverance, Persuasion”

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