The Supreme Court this week heard a case which challenges the so called “implied consent” laws in North Dakota and Minnesota, though they exist across most of the nation, when it comes to drunk driving regulations. This may sound like one of those off the beaten path, down in the weeds type cases, but it deals with a subject which I’ve been wondering about for some time now. How is it, in light of some of our most basic rights under the Fourth and Fifth Amendments, that someone can be punished for refusing to take a blood alcohol content (BAC) test which is demanded by the side of the road or immediately upon arrival at a police station without either access to a lawyer or, more importantly, a warrant from a judge?

These are questions which the justices seemed to be asking also, as detailed in this report from the Wall Street Journal.

The U.S. Supreme Court on Wednesday questioned laws in about a dozen states that make it a crime for a driver to refuse to take a blood or breath test even if police haven’t obtained a warrant.

Several justices made clear they don’t want to hamstring the ability of police to combat drunken driving, but they also suggested officers should secure a search warrant before conducting a chemical test to determine whether someone is intoxicated, at least if that test involves drawing someone’s blood.

By seeking to avoid a search-warrant requirement, state law enforcers are “asking for an extraordinary exception here,” Justice Anthony Kennedy told a lawyer representing the state of North Dakota. “You’re asking for us to make it a crime to exercise what many people think of as a constitutional right.”

We should get one thing out of the way right up front here: I’m fully aware that anyone who is pulled over for erratic driving who then wants to refuse a blood alcohol test is probably drunk and should be taken off the road. (With the exception of the occasional hard core Libertarian who is screaming, “AM I BEING DETAINED?!?!”) I get it, trust me. But if we can put that unpleasant reality aside for a moment, the question being raised here is a valid one because a response of saying someone is “obviously guilty” is insufficient grounds to move forward with anything in our legal system.

The big question in my mind is, again, whether or not the state can legally demand that you do something which seems to clearly fall under the category of offering potentially self-incriminating evidence and collect such data about your physical condition without seeking a warrant? That aspect of the case speaks directly to this whole idea of a law based on “implied consent.” In other words, if you accept a drivers license and go out driving on public roads, the state claims they have “made a deal with you” in which you agree to automatically forfeit certain rights in exchange for that privilege. But for many, if not most Americans, driving isn’t really an optional thing. Particularly in more rural areas, public transportation simply isn’t a workable way to get to and from a job, to the doctor’s office or attend to the various necessities of life. Holding the driver to an agreement which is akin to a Microsoft terms of service user agreement seems beyond the bounds of reason.

And what does law enforcement lose if this sort of “agreement” is shot down? Cops have to get warrants all the time for any number of crimes. Why not get a warrant for this if a car is seen zigzagging around and the drivers smells of alcohol. Sounds to me like sufficient probable cause for a judge to issue a warrant. If the worry is over the delay between the arrest and the administration of the test, I’m pretty sure we have a solid body of scientific research available to show how quickly alcohol clears out of the blood stream based on the subject’s size, weight, body type, etc. Surely a measurement taken an hour after the arrest can be legally extrapolated to estimate what the level was when they were pulled over.

I’ve never been comfortable with these laws because they seem to be a huge exception to the normal course of due process. It’s good to see the Supremes taking a look at them in the same light.

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