White River Junction
All states have implied consent laws, which essentially say that drivers, in exchange for the privilege of driving on public roads, consent to being tested for the use of alcohol or drugs when reasonable suspicion exists.
As is the case in most states, drivers in Vermont who refuse to be tested for impairment face a range of non-criminal penalties, including license suspension, fines and the potential that their refusal to be tested can be used against them as evidence of guilt.
A law in Vermont goes one step further, however. It holds open the possibility that people who refuse to take a blood or breathalyzer test can be charged with “criminal refusal” if they have been involved in an accident that resulted in death or serious injury, or if they had been previously convicted of drunken driving.
That was one step too far in the case of drivers who refused to submit to blood testing, the Supreme Court ruled this summer in the case of Birchfield v. North Dakota. States can’t criminally charge people who refuse a blood test, the court ruled, because Fourth Amendment protections against unreasonable searches apply differently to the two types of testing.
“It is one thing to approve implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a state to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit,” the ruling held. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”
The ruling speaks directly to the Vermont law, said Vermont Assistant Attorney General Matthew Levine.
“Our office is very clear that we need to comply with the case and we have been advising people, if you want a blood sample then get a warrant,” Levine said. “We don’t think it will be a great obstacle.”
New Hampshire Assistant Attorney General Sean Locke said the ruling will have no impact in his state because New Hampshire has no law that criminalizes the refusal to be tested. In fact, the ruling affirmed that states have a right to impose noncriminal penalties, he said.
New Hampshire law enforcement officials believe there are situations in which they can take a driver’s blood sample without a warrant, but only because those circumstances are covered by a different exemption to the Fourth Amendment’s prohibition against warrantless searches.
The rulings resulted from three different appeals before the court — two from petitioners who had been arrested on drunken driving charges and refused blood or breath tests and were subsequently charged for refusing to be tested.
The third case involved a driver who had agreed to have his blood drawn but appealed the resulting conviction and two-year license suspension on the basis that he had been coerced into consenting to the testing by the threat of being criminally prosecuted.
Eleven states, including Vermont and the two states that were under review in the case — North Dakota and Minnesota — allow officials to impose a criminal penalty on people who refuse to be tested.
Those criminal penalties were challenged on constitutional grounds, and the Supreme Court held, in a 7-1 vote, that such laws violate the Fourth Amendment governing searches because testing a person’s blood involves “piercing the skin” and constitutes a “physical intrusion.”
The Fourth Amendment allows for warrantless breath tests, the justices decided in a 6-2 decision, because of a longstanding exemption that allows people who have been lawfully arrested to be searched.
The court had previously determined, however, that there are limits to what types of searches are allowed in those circumstances — limits that are determined by balancing the degree to which the search is required to advance a legitimate interest against whatever intrusion upon an individual’s privacy results from the search.
Because the impact of breath tests on privacy is slight, and the need for blood alcohol content testing is great, the Fourth Amendment permits warrantless breath tests, the court ruled.
“Blood tests, however, are significantly more intrusive,” it ruled.
Unlike breath tests, blood tests also provide a sample that can be saved and contain personal information beyond the amount of alcohol in a person’s blood stream, the court noted.
Windsor County State’s Attorney David Cahill put out a memo to his prosecutorial team after the ruling advising his attorneys that Vermont’s implied consent law is now “null and void” regarding blood testing.
All parts of the implied consent law related to blood drawing will likely need to be rewritten, Cahill said.
Norwich-based attorney George Ostler said the ruling’s impact on Vermont is straightforward: The state cannot prosecute someone for refusing a blood test.
“It is very clear on that,” Ostler said of the ruling. “I think it is a pretty significant case in that the U.S. Supreme Court really makes a clear privacy distinction between breath and blood (tests).”
The ruling will not affect past Vermont cases in which people have been convicted of a crime for refusing a blood test, said Vermont Assistant Attorney General John Treadwell, who is chief of the criminal division.
“You can’t reopen it,” he said of those cases. “If the conviction is final, as in there was no appeal or there was an appeal and that appeal was denied, then it is done.”
Though officers can get similar information about alcohol content from both a blood and breath test, Cahill said, breath tests sometimes aren’t feasible.
For example, if a driver suffered a serious injury in a car accident, he or she may be taken to a hospital where no breath-testing equipment is available because such equipment is generally kept at police stations, Cahill said.
In addition, unlike blood tests, breath tests don’t always provide a complete picture of substances that may be in a driver’s blood stream, Treadwell said.
“A person may be under the influence of something other than alcohol or a combination of alcohol and something else,” he said. “The breath test doesn’t tell you the full story.”
On the other hand, Vermont police officers in certain circumstances can obtain a judge-issued warrant to draw a person’s blood. In such an instance, an officer would complete an application for a search warrant and send it to a judge for timely approval.
Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.