Denver DUI Attorney – Blood Tests vs. Breath Tests

Denver DUI Attorney, Thomas Nellessen, presents the latest Supreme Court ruling on alcohol testing.

There have been numerous issues to question when dealing with alcohol testing issues:

1. Which test more reliable,

2. Do I have to take a test,

3. What if I refuse the officer’s request,

4.  What will DMV do if I refuse a test, etc.

Well, the United States Supreme Court just ruled on a very important issue that will probably cause extra confusion for a while.  The case is BIRCHFIELD v. NORTH DAKOTA.   This case was argued on April 20, 2016, but the final decision just came down today, June 23, 2016.  (Please note that there were 3 cases involved here.  Together with the Birchfield case were the cases of Bernard v. Minnesota, on certiorari to the Supreme Court of Minnesota, and Beylund v. Levi, Director, North Dakota Department of Transportation, another North Dakota case.  Each of these cases involved a person being arrested for DUI and then being asked to comply with the “Expressed Consent” laws of the particular states.  In both North Carolina and Minnesota, it is a separate crime to refuse an alcohol test related to a DUI charge.

The United States Supreme Court held that in part that  the “taking a blood sample or administering a breath test is a search governed by the Fourth Amendment.”   Clearly, Blood and breath testing are quite different.  Breath tests are fairly non-intrusive and merely involve blowing into a tube to get a breath result.  However, a blood test is much more intrusive as there is a piercing of the skin to extract a blood sample.  This is much more intrusive to a person; and thus, the Supreme Court held that the “Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”  Because of the intrusiveness of the blood test, a warrant is required.

This new ruling will apply throughout the country, including here in Colorado.  Soon you will see procedures created for law enforcement officers to obtain warrants on the fly.  It may take some time before these new procedures are developed, but look for them in the very near future.