Page 29 - November December 2019 TPA Journal

scheme developed over the years to combat drunk “further delay” caused by a warrant application
driving. That scheme is centered on legally really “would have threatened the destruction of
specified BAC limits for drivers—limits enforced evidence.” Like Schmerber, this case sits much
by the BAC tests promoted by implied-consent higher than McNeely on the exigency spectrum.
laws. Over the last 50 years, we have approved McNeely was about the minimum degree of urgency
many of the defining elements of this scheme. We common to all drunk driving cases. In Schmerber,
have held that forcing drunk-driving suspects to a car accident heightened that urgency. And here
undergo a blood test does not violate their Mitchell’s medical condition did just the same.
constitutional right against self incrimination. See Mitchell’s stupor and eventual unconsciousness also
Schmerber v. California, 384 U. S. 757, 765 (1966). deprived officials of a reasonable opportunity to
Nor does using their refusal against them in court. administer a breath test. To be sure, Officer Jaeger
See South Dakota v. Neville, 459 U. S. 553, 563 managed to conduct “a preliminary breath test”
(1983). And punishing that refusal with automatic using a portable machine when he first encountered
license revocation does not violate drivers’ due Mitchell at the lake. But he had no reasonable
process rights if they have been arrested upon opportunity to give Mitchell a breath test using
probable cause, Mackey v. Montrym, 443 U. S. 1 “evidence-grade breath testing machinery.” As a
(1979); on the contrary, this kind of summary result, it was reasonable for Jaeger to seek a better
penalty is “unquestionably legitimate.” breath test at the station; he acted with reasonable
dispatch to procure one; and when Mitchell’s
These cases generally concerned the Fifth and condition got in the way, it was reasonable for
Fourteenth Amendments, but motorists charged Jaeger to pursue a blood test. As JUSTICE
with drunk driving have also invoked the Fourth SOTOMAYOR explained in her partial dissent in
Amendment’s ban on “unreasonable searches” since Birchfield: “There is a common misconception that
BAC tests are “searches.” breath tests are conducted roadside, immediately
after a driver is arrested. While some preliminary
Though our precedent normally requires a warrant
for a lawful search, there are well-defined testing is conducted roadside, reliability concerns
with roadside tests confine their use in most
exceptions to this rule. In Birchfield, we applied
circumstances to establishing probable cause for an
precedent on the “search-incident to-arrest”
arrest. . . . The standard evidentiary breath test is
exception to BAC testing of conscious drunk
driving suspects. We held that their drunk-driving conducted after a motorist is arrested and
arrests, taken alone, justify warrantless breath tests transported to a police station, governmental
building, or mobile testing facility where officers
but not blood tests, since breath tests are less
can access reliable, evidence-grade breath testing
intrusive, just as informative, and (in the case of
machinery.” Because the “standard evidentiary
conscious suspects) readily available. We have also
reviewed BAC tests under the “exigent breath test is conducted after a motorist is arrested
circumstances” exception—which, as noted, allows and transported to a police station” or another
appropriate facility, the important question here is
warrantless searches “to prevent the imminent
what officers may do when a driver’s
destruction of evidence.” In McNeely, we were
unconsciousness (or stupor) eliminates any
asked if this exception covers BAC testing of drunk-
driving suspects in light of the fact that reasonable opportunity for that kind of breath test.
blood-alcohol evidence is always dissipating due to The Fourth Amendment guards the “right of the
“natural metabolic processes.” We answered that people to be secure in their persons . . . against
the fleeting quality of BAC evidence alone is not unreasonable searches” and provides that “no
enough.. But in Schmerber it did justify a blood test Warrants shall issue, but upon probable cause.” A
of a drunk driver who had gotten into a car accident blood draw is a search of the person, so we must
that gave police other pressing duties, for then the

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