Is Refusing a Breath Test or Blood Test a Crime?


But maybe refusing a breath test is.

Drivers can't be charged with refusing a blood test. But there are still some issues that are up in the air.

Some states make it a crime (not just an enhancement like California) for a defendant to refuse to take a breath or blood test when a defendant is arrested for DUI.

The US Supremes here hold that this it is acceptable for a warrantless BREATH test, but not a warrantless BLOOD test. The court looks to the level of intrusion-e.g. piercing the skin etc.

The court uses a balancing test in determining when a state may make it a crime to refuse a test where there's no warrant. The court concludes that a breath test doesn't involve a substantial intrusion on a defendant, but a blood test does.

The court also says that the implied consent law doesn't eliminate the need for a warrant. This is important because previously some courts were getting around the warrant requirement by referring to California's implied consent which states that to drive on California roads you agree to give these tests when you are arrested for a DUI.

We don't really know what this means for California, because we don't have a SUBSTANTIVE crime for refusing to take a test merely an enhancement (additional punishment). Obviously, if we can't be charged with a crime for refusing we shouldn't be further punished. There is a great argument that the rule preventing refusal of a warrantless blood test from being a crime also bars imposing additional punishment for that refusal.

Usually a police officer asks our clients if they will take a blood OR a breath test, and if the client refuses they are refusing BOTH. So, what does that mean for California? Stay tuned.

Birchfield v. North Dakota; No. 14-1468; 6/23/16; US Supremes

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