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Justices Consider Whether Police May Force A Breath Test Without A Warrant

The U.S. Supreme Court heard arguments Wednesday on whether police must get a warrant before forcing a driver to submit to a blood alcohol or breath test. All 50 states have laws that allow revocation of a driver's license for such a refusal. But a dozen states and the federal government have additional laws that provide criminal punishment – jail terms – for such refusals.

The states concede that breath tests and blood draws each constitute a "search" of a person's body and normally, under the Constitution, a search requires a warrant. But the question before the court was whether states can get around the warrant requirement by enacting laws that making it a crime to refuse to submit to a test.

Three defendants from North Dakota and Minnesota are challenging their convictions for refusing to take either a blood alcohol or breath test. Their lawyer, Charles Rothfeld, told the justices that the fundamental problem with the statutes at issue here is that they make it a crime to assert a constitutional right – namely, the right to be free from a bodily search unless the police get a warrant.

One way to look at it, Justice Samuel Alito said, is that the defendants are "reneging on a bargain." The bargain is: we give you a license to drive, and in exchange, you agree to take a blood alcohol test.

Rothfeld rejected that idea, noting that the defendants here had no idea they had ever consented to that bargain.

Justice Stephen Breyer suggested that breath tests are different from blood alcohol tests: there is no bodily intrusion except for the insertion of a straw into the mouth to breathe into; there is no pain; and it can be done roadside.

Justice Elena Kagan asked why the court should not deem a breath test as necessary to measure evidence of quickly dissipating alcohol in the blood.

But if all that sounds as though the Court was friendly to the idea of warrantless blood alcohol and breath tests, the worm turned quickly when the lawyers for the states and the federal government began to present their arguments.

Lawyer Thomas McCarthy, representing North Dakota, tried to tell the justices that they would be putting the states "in a terrible bind" if search warrants were to become required for these tests.

Justices, both liberal and conservative, pounced.

"In Wyoming it takes five minutes" to get a warrant, we are told, said Justice Breyer, and in Montana, 15.

Justice Kagan added that "over 40" states have set up electronic systems for getting warrants.

But McCarthy maintained that in rural North Dakota it would take a half hour to an hour to get a warrant.

"Why is it harder to get somebody on the phone" in a rural area than in a busy city, asked Justice Anthony Kennedy, adding puckishly that you would "think people in the rural areas were sitting waiting for the phone" to ring.

Rural areas have fewer resources, replied McCarthy, and fewer people to process warrant requests.

"So that excuses you from a constitutional requirement?" said Justice Sonia Sotomayor. "We're now going to bend the Fourth Amendment" to "give a pass to North Dakota?"

As the justices pressed for "practical" explanations from the states, Justice Kagan asked what the justification is for not getting a warrant if other similar states can get one in 10 or 15 minutes.

"You're asking for an extraordinary exception here," Justice Kennedy said, "and you're just not answering the question."

Lawyer Kathryn Keena, representing Minnesota, didn't have any more luck with her argument, though she tried to persuade the justices that they were blind to the facts of life in rural Minnesota and North Dakota, while she, who had grown up in "a town of 2,000, twenty miles from the North Dakota border," could tell them a thing or two.

Her argument suffered even more when the federal government's Ian Gershengorn, while arguing against a warrant requirement, made a contradictory point. It is urban areas that have trouble meeting the warrant requirement, he maintained, because a city like New York is so busy that its courts may have time for terrorism warrants, but not warrants to get a blood alcohol test.

In rebuttal, however, lawyer Rothfeld countered that studies conducted by the National Highway Transportation Safety Administration show that routine warrant procedures – in rural and urban areas alike – drive down test refusals, and drive up DUI convictions.

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