Interested parties will hold their breath (pun intended) as the Court contemplates a trio of drunk driving cases. Fourth Amendments cases are often closely divided so the absence of Justice Scalia may make a difference.

State implied consent statutes criminalizing a person’s refusal to take a warrantless chemical blood alcohol test upon suspicion of drunk driving are constitutional, argues the State and Local Legal Center (SLLC) in a Supreme Court amicus brief.

All 50 states have adopted implied consent laws requiring motorists as a condition of driving in the state to consent to a blood alcohol content (BAC) test if they are suspected of drunk driving. If motorists refuse to consent typically their driver’s license is temporarily suspended. NCSL reports that 15 states also currently criminalize refusal to consent. Criminal penalties typically include fines and jail time. 

In Missouri v. McNeely (2013) the Supreme Court held that police generally have to obtain a warrant to conduct a BAC. So the argument goes, it is unconstitutional to criminalize the refusal to take a BAC test if a warrant was required to conduct the test but not obtained.

The Court accepted three cases, Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi from two different states (Minnesota and North Dakota). The lower courts held the implied consent statutes were constitutional.

Consent is an exception to the Fourth Amendment’s warrant requirement. The Petitioners argue, among things, that the consent exception does not apply to criminal implied consent statutes because consent isn’t obtained voluntarily. Driving is a necessity--so consent can only be obtained through duress or coercion.

The SLLC amicus brief points out that “drunk driving imposes a terrible toll on America, killing thousands and shattering the lives of tens of thousands of others each year.” The SLLC brief argues that while driving is important to many Americans, it is a voluntary privilege. So agreeing to BAC testing is voluntary as well. And criminal implied consent laws are reasonable because “they have been in effect across the Nation for decades, and that this Court has repeatedly upheld them against challenge and referred to them only in approving terms.”

Greg Garre, Jonathan Ellis, and Ben Snyder of Latham Watkins, wrote the SLLC which was joined by the Council of State Governments, National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and the International Municipal Lawyers Association.