Breath or Blood Test?

Should you go with a breath or blood test? What is really the more accurate way of measuring alcohol levels on individuals suspected for Drunk Driving?

Last month the U.S. Supreme Court heard arguments in several combined cases regarding the constitutionality of the laws of certain states that make it a criminal offense for a suspected drunk driver to give an investigating officer a breath or blood test in order to determine their blood alcohol level.

The high court is having second thoughts on state laws, including those in Florida and North Dakota which convicts alleged suspects of drunk driving for a separate criminal offense when they refuse to be tested for their alcohol blood level.

The justices hear cases challenging the laws of North Dakota and Minnesota on the issue of police officers securing a warrant first before they can require DUI suspects to undergo urine, blood and breath test.

Obtaining a warrant to draw blood

A number of justices expressed that they are not hampering the right of police officers to effectively catch DUI violators. Rather, they are recommending that police officers should obtain a search warrant first before they can have the right to subject a person to a blood draw.. Statistics showed that it only takes an average of five minutes to secure a warrant by phone in Wyoming while it takes 15 minutes to have one in Montana as emphasized by Justice Stephen Breyer.

Asking Consent to Breath or Blood Test

North Dakota state lawyer Thomas McCarthy, reasoned that the state creates a bargain with drivers to agree to consent to an alcohol breath or blood test as a condition of driving on state highways. This theory was rebutted by Justice Breyer, who noted that the state is creating a crime out of people’s assertion of their right against an unlawful search as protected in both state constitutions and the U.S. Constitution. The sides cannot seem to come to an agreement as to why getting warrants first is not being prioritized.

This was clarified by Minnesota prosecutor, Kathryn Keena, saying that some provincial places may only have one judge present making it a difficult task to procure a warrant each time an incident happens. She added that even in the presence of a warrant, refusal to take the test and face lesser charges for obstruction of a warrant than for the charge of DUI.

Breath Test Without Warrant

Over the 70 minutes debate between the state attorneys and the justices, there was one compromise brought in for suggestion, which is allowing a breath test without a warrant because the procedure is considered less invasive than pricking a needle into one’s skin for blood test. The Fourth Amendment prohibits unreasonable searches and seizures, which includes blood or urine tests, making the necessity for a warrant before a motorist can be subjected to them.

When Charles Rothfeld, representing of the challengers to the laws stated that both blood sample and breath tests are equally intrusive and therefore should require a warrant; Justice Breyer expressed his disagreement as the majority of Justices do not seemingly agree that a breath test is the same level of intrusion as a blood test. He added that there is nothing wrong with the test without a warrant if such a fast and non-invasive procedure can save many lives when administered to those who are allegedly driving drunk.

The cases being heard were submitted by motorists in Minnesota and North Dakota who were convicted a crime, separate and distinct from their DUI charges after they disagreed to take a required test. They filed the cases based upon a high court ruling in 2013 saying that the police cannot execute breath or blood test for drunk driving without a warrant.

At the end of the hearing, it was clear that most of the justices are still against the laws of states forcing a test without a warrant, but it is not fully clear as well if they are 100 percent amenable to what the challengers presented.

The rest of the states having the same laws as Minnesota and North Dakota are Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

If you’re arrested for a DUI, contact the foremost legal team on the Eastern Seaboard, give Team Green a call.

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