States and local governments have worked tirelessly to tackle the problem of drunk driving. The Supreme Court may take one option off the table this term.

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.

The Supreme Court will decide whether state statutes criminalizing a person’s refusal to take a chemical BAC test where police have not obtained a warrant are unconstitutional. Thirteen states criminalizethe refusal to take a warrantless BAC test. 

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 three decisions that the Supreme Court has agreed to review all upheld the state statutes.

In Bernard v. Minnesota Bernard argued that Minnesota’s test refusal statute criminalized his Fourth Amendment right to refuse an unconstitutional, warrantless search. But the Minnesota Supreme Court held that the warrantless search of Bernard’s breath would have been constitutional as a search incident to a lawful arrest. Bernard argues in his petition to the Supreme Court that “as a practical matter, [the Minnesota Supreme Court decision] reads this Court’s McNeely decision off the books.”

In Birchfield v. North Dakota the North Dakota Supreme Court concluded that because Birchfield wasn’t tested there was no search so there was no Fourth Amendment violation. The court distinguished North Dakota’s test refusal statute from Camara v. Municipal Court of San Francisco (1967) where the Court found a Fourth Amendment violation where no search was conducted. In Camara a city ordinance authorized city officials to conduct warrantless inspections of private property and charge criminally those who refused to comply. But North Dakota’s test refusal statute, unlike the ordinance in Camara, “does not authorize a warrantless search.”

In Beylund v. Levi Beylund, unlike Birchfield, agreed to take the chemical test and then claimed that it imposed an unconstitutional condition. The North Dakota Supreme Court concluded test refusal statutes are reasonable because “a licensed driver has a diminished expectation of privacy with respect to the enforcement of drunk driving laws, and our implied consent laws contain safeguards to prohibit suspicionless requests by law enforcement to submit to a chemical test.”

It is difficult to know what legal theory the Court will focus on in issuing a decision in this case as all three of these cases (and there are others) discuss different theories.