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Daily Court Reporter - News DUI tests may be an offer you can’t refuse


DUI tests may be an offer you can’t refuse

The U.S. Supreme Court recently issued an opinion about whether search warrants are necessary for blood tests and breath tests in DUI cases (called OVI—"Operating a Vehicle while under the Influence"—in Ohio). In Birchfield v. North Dakota, the Court decided that breath tests can be given without first getting a warrant, but blood tests require a warrant. The Court's opinion in Birchfield impacts Ohio OVI law.

Q: What are the facts of the case?

A: The Birchfield decision involves three separate cases. In the first case, the defendant was convicted of a crime for refusing to take a blood test. In the second case, the defendant was convicted of a crime for refusing to take a breath test. In the third case, the defendant consented to a blood test, but later claimed his consent was coerced because the officer threatened to charge him with a crime if he refused the test.

Q: Why might a search warrant be needed for a blood or breath test?

A: Blood tests and breath tests are considered "searches," which are subject to the Fourth Amendment's prohibition against unreasonable searches and seizures. For a search to be reasonable, there must be a search warrant or a recognized exception to the search warrant requirement. The exception analyzed by the Court in Birchfield is the exception for a search that is done as part of a lawful arrest.

Q: How does the Court determine if a search warrant is necessary?

A: The Court balances the need for blood and breath testing to promote legitimate governmental interests with the tests' intrusion on an individual's privacy.

Q: What legitimate interest does the government have in blood and breath testing?

A: The government has a legitimate interest in preserving highway safety by combatting drunk driving. Blood and breath testing are used to combat drunk driving.

Q: How do an individual's privacy interests differ for blood tests and breath tests?

A: The Birchfield opinion concludes that the intrusion on an individual's privacy is significant for blood tests, but slight for breath tests. With blood tests, there is a physical intrusion under the skin, part of the person's body is extracted, and the information obtained from the extracted blood includes private health information in addition to the blood alcohol content. With breath tests, there is little or no physical intrusion, no part of the person's body is extracted, and the information obtained from the exhaled breath sample is limited to the breath alcohol content only.

Q: Why are search warrants required for blood tests but not breath tests?

A: For breath tests, the governmental interest outweighs the individual's privacy interests, so the Court determined that the Fourth Amendment permits warrantless breath tests. For blood tests, the governmental interest is reduced because breath testing is available without a warrant. The governmental interest is outweighed by the individual's privacy interests, so the Court found that the Fourth Amendment does not permit warrantless blood tests.

Q: How does the Birchfield decision impact Ohio OVI law?

A: In Ohio, it is a crime for a person to refuse a blood/breath/urine test if that person is arrested for OVI and has a prior OVI conviction within the last 20 years. The Birchfield decision bolsters this law as it applies to breath testing, but invalidates this law as it applies to blood testing without a warrant. In addition, this decision opens the door for the Ohio General Assembly to eliminate the prior conviction requirement and simply make it a crime for a person to refuse the breath test if arrested for OVI.

Q: Is a warrant required for urine testing?

A: Birchfield does not address warrantless urine tests, so this issue will be litigated through Ohio's courts. The prosecution will likely argue that urine tests do not require a warrant because urine is similar to breath: there is no physical intrusion, the sample is not a part of the body, and there is minimal inconvenience. The defense will argue that urine tests do require a warrant because urine is similar to blood: the information contained in urine is not limited to alcohol content, and the embarrassment of urinating with a witness (as required by Ohio law) is not slight. The Supreme Court of Ohio will ultimately decide if a urine test, like a breath test, is also "an offer you can't refuse."

This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Shawn R. Dominy.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

Date Published: March 22, 2017


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