Page 181 - Texas police Association Peace Officer Guide 2017

Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell
phones, but here, as in Riley , the founding era does not provide any definitive guidance as to
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whether they should be allowed incident to arrest. Lacking such guidance, we engage in the
same mode of analysis as in Riley : we examine “the degree to which [they] intrud[e] upon an
individual’s privacy and . . . the degree to which [they are] needed for the promotion of
legitimate governmental interests.’”

We begin by considering the impact of breath and blood tests on individual privacy interests, and
we will discuss each type of test in turn. Years ago we said that breath tests do not “implicat[e]
significant privacy concerns.” That remains so today. First, the physical intrusion is almost
negligible. Breath tests “do not require piercing the skin” and entail “a minimum of
inconvenience.” The effort is no more demanding than blowing up a party balloon.

Nor, contrary to Bernard, is the test a significant intrusion because it “does not capture an
ordinary exhalation of the kind that routinely is exposed to the public” but instead “‘requires a
sample of “alveolar” (deep lung) air.’” Humans have never been known to assert a possessory
interest in or any emotional attachment to any of the air in their lungs. The air that humans
exhale is not part of their bodies. Exhalation is a natural process—indeed, one that is necessary
for life. Humans cannot hold their breath for more than a few minutes, and all the air that is
breathed into a breath analyzing machine, including deep lung air, sooner or later would be
exhaled even without the test.

Just recently we described the process of collecting a DNA sample by rubbing a swab on the
inside of a person’s cheek as a “negligible” intrusion. We have also upheld scraping underneath
a suspect’s fingernails to find evidence of a crime, calling that a “very limited intrusion.” A
breath test is no more intrusive than either of these procedures. Second, breath tests are capable
of revealing only one bit of information, the amount of alcohol in the subject’s breath. In this
respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King.
Although the DNA obtained under the law at issue in that case could lawfully be used only for
identification purposes, the process put into the possession of law enforcement authorities a
sample from which a wealth of additional, highly personal information could potentially be
obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more. No
sample of anything is left in the possession of the police. Finally, participation in a breath test is
not an experience that is likely to cause any great enhancement in the embarrassment that is
inherent in any arrest. For all these reasons, we reiterate what we said in Skinner: A breath test
does not “implicat[e] significant privacy concerns.”

Blood tests are a different matter. They “require piercing the skin” and extract a part of the
subject’s body. And while humans exhale air from their lungs many times per minute, humans
do not continually shed blood. It is significantly more intrusive than blowing into a tube.
Perhaps that is why many States’ implied consent laws, including Minnesota’s, specifically
prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests

A Peace Officer’s Guide to Texas Law 176 2017 Edition