Fourth Amendment Permits Warrantless Breath Tests, Prohibits Warrantless Blood Tests for DUI

Filed under: DUI, News by Contributor @ July 13, 2016


In a recent decision that will have a major impact on DUI cases in Pennsylvania, the Supreme Court of the United States decided the case of Birchfield v. North Dakota, holding that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, but that it does NOT permit warrantless blood tests. Consequently, a driver can not be subject to enhanced criminal penalties for refusing to submit to a warrantless blood test. Further, there is a great argument that anyone who was read Pennsylvania’s DL-26 implied consent refusal form, which advised that greater criminal penalties were applicable to anyone refusing the test, did not knowingly and voluntarily consent to the blood draw. Finally, even if the person was not read DL-26 warnings, I think there is a great argument that ignorance of the law is not a defense, a person is presumed to know the law, and current Pennsylvania law does in fact impose enhanced criminal penalties for people who refuse requested blood tests – and thus any consent given to police to draw blood has been coerced.

Birchfield was a consolidation of three separate but similar cases pertaining to drunk driving laws. In the first case, the defendant Birchfield was arrested for DUI following an incident in which an officer found the defendant’s car in a ditch and Birchfield exhibited multiple signs of impairment. After the arrest, Birchfield refused to let his blood be drawn despite being faced with penalties from a statute which criminalizes the refusal of such tests. Birchfield later entered a conditional guilty plea, admitting that he had refused the test, but claiming that the Fourth Amendment prohibits criminalizing the refusal of warrantless blood tests.

In the second case, the defendant Bernard was arrested for DUI after police found his car partially stuck in a river. The arresting officer informed Bernard of the state’s implied consent laws and explained that refusing a breath test is a crime. However, Bernard, who had been convicted of four prior DUIs, refused the test and was convicted of test refusal in the first degree.

In the third case, the defendant Beylund was arrested for DUI after police observed him driving erratically. The arresting officer transported Beylund to a hospital where he informed him of the state’s implied consent laws and the fact that refusal of a blood test would be a crime. Beylund then agreed to have his blood drawn, and testing revealed that his BAC was more than three times the legal limit. However, Beylund later argued that his consent to the blood test was coerced by the officer’s warning that refusing the test would be a crime itself.

The Court began its analysis by reaffirming that the taking of one’s breath or blood constitutes a search, and is therefore governed by the Fourth Amendment. Because of this, a person may not be searched without a warrant except under certain circumstances, most notably when incident to a lawful arrest. The Court then analyzed the degree to which a person’s body or property may be searched incident to arrest using a balancing test, weighing the degree to which the search intrudes upon the person’s privacy and the degree to which the search is needed for the promotion of legitimate government interests.

Regarding breath tests, the court held that these tests or “searches” do not present significant privacy concerns. Because of this, the government interests served by using them, namely keeping the public safe from drunk drivers, outweigh privacy issues, meaning that a warrantless breath test incident to arrest is constitutional. In reaching this conclusion, the Court noted that the physical intrusion of a breath test was negligible, comparing the administration of a breath test to blowing up a balloon or using a straw. Additionally, people do not have any possessory interest or emotional attachment to the breath in their lungs because it is not part of their body. Further, a breath test is only capable of revealing a person’s BAC, unlike a blood test which authorities could use to learn a great deal about the test subject. Also, the Court held that, unlike with other tests, participation in a breath test is not likely to increase the level of embarrassment inherent in being arrested.

On the other hand, the Court held that blood tests are significantly more intrusive because they require piercing the skin and removing a part of the body. Additionally, law enforcement officials could potentially use a blood sample for more than just a BAC calculation. While the governmental interests in calculating a DUI suspect’s BAC are substantial, the Court held that the intrusion on a person’s privacy during a blood test is too great, especially when the less intrusive alternative of a breath test is available. Thus, warrantless blood tests incident to arrest are unconstitutional.

Applying this analysis to the defendants, the Court found that Birchfield was criminally prosecuted for refusing a warrantless blood test, and consequently  the search he refused could not be justified as a search incident to his arrest or on the basis of implied consent. Birchfield merely refused an unlawful search, and therefore the judgment against him was reversed. As for Bernard, the breath test he refused was a lawful search incident to his arrest. The Fourth Amendment did not require the arresting officer to obtain a warrant before taking Bernard’s breath, and thus Bernard had no right to refuse the test. Regarding Beylund, who consented to a blood test believing that it was necessary under the state’s implied consent laws, the Court held that voluntariness of consent to search must be determined from the totality of the circumstances. Because Beylund’s consent was based on the erroneous belief that a warrantless blood test was lawful, the Court remanded his case to the state court to reevaluate Beyland’s consent given the partial inaccuracy of the officer’s explanation of the state’s implied consent laws.

In summary, the Fourth Amendment allows criminal penalties based upon warrantless breath tests incident to arrest because the administration of a breath test only negligibly intrudes on a person’s privacy, and the government interests served by allowing such tests are great. However, the Fourth Amendment does NOT allow criminal penalties based upon warrantless blood tests incident to arrest because piercing a person’s skin and taking a part of their body is highly intrusive, and the government’s interest in calculating the person’s BAC could be served just as well with a breath test.

Pennsylvania’s implied consent laws will no longer allow police to draw a person’s blood simply because they were arrested while driving. However, this does not appear to impact situations where police request a breath test, or request a blood test and report a refusal to take the test to PennDOT for purposes of civil license suspension (since no criminal penalties are implicated by the civil license suspension). Further, while the Court analyzed North Dakota’s law which made it a separate crime to refuse a BAC test, PA merely imposes enhanced penalties for refusal rather than making it a separate offense entirely. However, the result will likely be the same, and law enforcement in PA will not be permitted to enhance criminal penalties due to a defendant’s refusal of an unconstitutional blood test.

The practical results of all of this are expected to include:
1. Prosecutors will concede that all enhanced penalties based upon refusal of a blood test after the motorist is warned about enhanced sentencing for refusal are no longer valid, and the motorists will be sentenced based upon the general impairment tier.
2. It is not clear whether prosecutors and PennDOT will honor the spirit of Birchfield in ARD cases, potentially reducing highest tier cases that would receive two month suspensions to general impairment level cases with no suspension. Ultimately, I believe they will, as it is intellectually dishonest to honor the ruling in one setting but not the other.
3. The standard advice that all drivers are better off taking a blood test upon police request may need to be modified, especially for multiple offenders who likely can only trigger the most serious grading and mandatory minimum penalties by taking the blood test, rather than by refusing it. It remains to be seen whether a revised DL-26 form that removes reference to increased criminal penalties will remove the unconstitutional coercion so long as Pennsylvania law remains that you are subject to increased penalties for refusing the test. Prosecutors are arguing that the new form is sufficient, but can you really argue that removing language from a form eliminates the stench of a law that remains on the books, especially when citizens are presumed to know the law and ignorance of the law is no defense?
4. There is no way to prosecute drug cases with breath tests. Police will need to rely on DRE testimony or untrained police testimony about signs of drug-based impairment. This virtually eliminates the metabolite-based drug DUI cases that do not rely on impairment, unless police obtain warrants and request blood.
5. Police will have to either get a warrant to obtain blood or move to breath testing instead. Breath testing is much more vulnerable to challenge and easier for the defense to overcome.

Click this link if you want to read the entire Supreme Court Opinion.

What do you think of the holding in this case? Have you thought of other ramifications of this decision as applied to Pennsylvania law? Let us know in the comment section below.



  1. Esther says:

    My friend was convicted in May and will be sentenced 7/14/16 today. Not guilty of the other charge but guilty of dui since he had 2 NG in pa. Does the birchfield case have an effect on my friends sentencing?

  2. Some prosecutors are taking the position that Birchfield is not retroactive but so far Montgomery County has agreed to apply Birchfield to cases resolved in the 30 days before Birchfield was decided. There is a good argument to be made for effect further back. Anyone looking at this issue needs to alert their lawyer for a complete assessment in light of all the facts of the specific case.

  3. Lucy Brakeall says:

    How does the the Supreme Court decision apply to law in Pa. in general and Delaware county specifically? Who decides?

  4. The United States Supreme Court decision did not expressly address Pennsylvania law or how it would apply in Pennsylvania. However, now that some time has passed, the practical effects throughout the state include most prosecutors conceding that where motorists were told that they would face more incarceration if they refused a blood test, the charge should be reduced to general impairment. There are some exceptions, such as if the motorist was passed out at a red light with a heroin-filled needle hanging out of his arm. You don’t need a blood test to prove that case. Some of the issues arising include: If the motorist consented to the test do you get a different result? Does the DA concede that the license suspension should be reduced in ARD cases (some won’t concede that constitutional concerns are valid in the ARD setting). Isn’t it relevant that state law still mandates greater jail time for people who refuse blood tests, whether they are expressly advised of that fact or not? There are many more issues and factual scenarios that can come up, so this blog is intended to highlight the need to get good legal advice – it is not a substitute for that. Best of luck! Steve

  5. Richard Rinaldi says:

    Has there been any subsequent case law that supports your proposition that “there is a great argument that anyone who was read Pennsylvania’s DL-26 implied consent refusal form . . . did not knowingly and voluntarily consent to the blood draw”?

    I know many police departments that are still reading the DL-26 form to motorists.

  6. No appellate cases yet, but there are local court opinions. Montgomery County and Bucks County prosecutors have been conceding this issue under the theory that reading a warning that threatens jail time if you don’t provide a blood sample is unconstitutional since you have a constitutional right to refuse the blood test and therefore can’t suffer criminal penalties for exercising that right. The DL-26 form that you are seeing in use today is probably an amended version which takes out the threat of jail time for refusing the test. However, its use is misguided, in my opinion, since state law still provides for increased jail time if you refuse the test and that is unconstitutional coercion in and of itself. I think cases based upon the amended form will likely be litigated for some time until the appellate courts resolve that issue.

  7. Joe says:

    Does anyone know if Bucks County has been allowing cases resolved within a short time of this ruling to be applied retroactively. I see someone said that they were allowing it within 30 days in montgomert county. How about Bucks? My girlfiend plead guilty on july 15th, which was only a week or so before the ruling. Our lawyer knew nothing about this. He has since refused to answer our calls. She was sentenced to a year so its a big deal.

  8. You should definitely hire a lawyer to look into this specifically for her case ASAP, but it may already be too late to simply have it corrected. If so, you should look into filing a PCRA Petition, which can be done up to one year (really 13 months) after conviction. That would be the last resort.

  9. D Scott Liberati says:

    So ,in the end what tier will these DUI cases fall under. For example, I was offered a 24 month flat State Intermediate Sentence for the Highest Tier. Then Birchfield came out 3 days later, I advised my attorney, DA reduced it to a second tier, but wanted the same 24 month flat SIP sentence. I was under the impression all DUI cases were to be lowered to A Tier 1 General Impairment, “No Jail Time” True or False????? Im headed to Stae Prison on the 17th Of November, 2016

  10. I won’t advise you about the law based upon a few sentences when you already have an attorney. I might be missing essential facts that your attorney knows so you should go back to your attorney and ask for a complete explanation. In general, Birchfield does require reduction to the lowest tier. However, sentencing can be independent from the tier. In other words, a Judge doesn’t have to always give the mandatory minimum. Other situations can arise, such as Birchfield requiring suppression of blood results but the Commonwealth being able to establish a drug based DUI without the blood. So again, ask your attorney to explain everything and hopefully it will make more sense then.

  11. don says:

    Can one who submits to a breath test then be required to submit to a blood test, the refusal of which carries a license suspension?

  12. I would want to look at this before giving a formal opinion, but off the cuff I believe that they can only request a second test where there is a problem with the first – such as equipment failure.

  13. Zoe says:

    Has there been a ruling on this in Cumberland County yet? If not, how would one go about finding this info?

  14. Yes, the Cumberland County Court of Common Pleas has suppressed Birchfield cases where the DL-26 form that advised of increased jail time for a refusal was read and the driver provided blood. I believe the DA has been conceding cases where there was a refusal as well (they are reduced to General Impairment cases). The only way to find these things out is to retain a good lawyer – most of these results are not published.

  15. Bill Millet says:

    Since I refused a blood test at the hospital,and the Birchfield case makes it unconstitutional for police to do that. Then why is PENNDOT not in adherence with what the US SUPREME COURT HAS ORDERED. Are they (Penndot) above the law of the land the supreme court hand down?

  16. The Birchfield decision expressly excluded drivers’ license suspensions from its holding. However, you may wish to call us about your case as there are still some other arguments that can be made to attack those suspensions.

  17. Jen says:

    What about urine testing? The Birchfield decision does not seem to address police using urine to test got drugs and alcohol. Thx!

  18. Urine testing for DUI in Pennsylvania simply isn’t done. If you have a case where it was done you should certainly mount a challenge to that. The Birchfield holding only applies to blood tests (not urine or breath) due to the intrusive nature of sticking a needle into the person to draw the blood.

  19. Ronald Stimpson says:

    Can the cops take the blood first then read you the dl-26 form? Dazed by an air bag hitting in the face give provable cause for a blood test.

  20. If you consent to the test then they don’t have to read the DL-26 at all. If you were medically incapable of consent (a very high standard) then the test might be suppressed.

  21. Thomas Butterfield says:

    I was convicted of my fourth dui jan28th 2016, I was sentenced to one to two years, plus two years probation, I filed a pcra on the case in a timely fashion an it was based off birchfield, that was in Sept 2016, the judge has still not ruled on it, I don’t understand or know what to do

  22. Birchfield was decided June 23, 2017. It may not be retroactive meaning that it may not apply to cases decided before that date. Further, there may be an argument that the attorney was not ineffective for failing to know of a case that had not yet been decided, although the counter argument is that since the case was on appeal before the United States Supreme Court any attorney could have been aware of it. If this matter has already been argued then there is probably nothing you can do except wait for the decision.

  23. Malinda says:

    My brother was was pulled over in Montgomery County and taken directly to the hospital for a blood test. They did not do a breath test, nor did they read him a DL-26. The results of the blood showed impairment. Do you think he could use the Birchfield law for defense. It was stated that not complying with a blood test would result in arrest regardless of impairment or not.

  24. I haven’t seen a case where someone was told they would be arrested if they did not consent to the test. More likely he was threatened with a civil suspension which is permissible under Birchfield, though may be objectionable on other grounds. You should definitely consult a lawyer about the Birchfield implications. Steve

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