Many states, including Virginia, have laws that require drivers to submit to a breath or blood test if they are arresting of suspected DUI or DWI. These laws are known as the implied consent law, since operation of a motor vehicle is a privilege, and therefore conditions can be placed on that privileged. In Virginia, most drivers are offered a breath test, and only asked to take a blood test when the officer suspects that drugs are the cause of the impairment, the breath test is unavailable, or the person is physically unable to take the breath test. The penalty for refusal of these tests can range from loss of driving privileges to up to a year in jail.
On June 23, 2016, the Supreme Court of the United States took up the issue of whether a warrant is required for the police to get a sample of breath or blood for a driving under the influence arrest. In Birchfield v. North Dakota, the Court ruled that a warrant was required for a blood test only.
The Court ruled that since a blood test is more invasive, the police are required to get a search warrant to satisfy the 4th amendment rule against unreasonable searches and seizures. The Court held that since breath tests are not very invasive, they fall under the search incident to arrest exception and therefore do not require a warrant.
In addition, the Court may have invalidated “criminal” refusals. The Court ruled a refusal charge that only brings about a civil penalty of a loss of license is constitutionally sound, however, a person cannot be charged criminal for not consenting to a warrantless blood sample.
The full text of the opinion can be found at https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf.
If you have been arrested for DUI, DWI, or Refusal and wish to see how this ruling may effect your case, please contact the DUI/DWI lawyers at Winslow & McCurry, PLLC at 804-423-1382.
