United States Supreme Court Clarifies DUI Evidence Rules

In a highly-anticipated decision, the Supreme Court Justices approved of some controversial laws and procedures in the area of DUI evidence, while they put a stop to some others.

Facts and Procedural History

Nearly all states, including Illinois, are “implied-consent” jurisdictions, which means that all drivers theoretically consent to Blood Alcohol Content (BAC) chemical tests when they receive their driver’s licenses and, as a result, the state can suspend their licenses if they later refuse consent. In recent years, some states, not including Illinois, have gone a step further and made it a jailable offense to refuse consent to a breath or blood test.

Birchfield v. North Dakota was actually three consolidated cases. In one, a North Dakota state trooper arrested Danny Birchfield on suspicion of DUI; Mr. Birchfield refused consent to a blood test and was subsequently charged with a misdemeanor. He argued that the Fourth Amendment, which prohibits unreasonable searches and seizures, rendered the state’s “refusal to submit” law invalid. In a separate incident from the Peace Garden State, Steve Michael Beylund consented to a blood test and then argued that the officer’s warning about possible criminal charges for refusing to submit amounted to unlawful coercion. The third petitioner, William Robert Bernard, Jr., of Minnesota, refused to take a breath test and was charged with first degree refusal. Rather unsurprisingly, the State Supreme Courts of North Dakota and Minnesota affirmed all three convictions.


Writing for the majority, Justice Samuel Alito declared that warrantless breath tests, but not warrantless blood tests, are permissible under the Fourth Amendment.

Chiefly relying on Skinner v. Railway Labor Executives’ Association and some other cases, Justice Alito concluded that breath tests are no more invasive than DNA swipes and fingernail scrapes, both of which are acceptable warrantless searches. Breath tests also leave no chemical trail behind: Once the Breathalyzer registers the reading, the sample is disposed of. None of these things are true in invasive blood tests in which the sample can theoretically be retained forever.

As for the failure to submit laws, Justice Alito wrote that “[t]here 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,” and criminalizing refusal to submit to a blood draw crosses that line. However, since breath tests do not require warrants, refusal-to-submit laws are constitutional if limited to breath tests.


From one perspective, these three gentlemen never had a chance. The first ten words in Justice Alito’s opinion are “Drunk drivers take a grisly toll on the Nation’s roads.” You do not need a law degree to hear the negative tone. Other people, judges and jurors alike, often have similar attitudes. There is a subtle yet discernable bias in these cases that prosecutors are all too willing to exploit, making these matters difficult, but certainly not impossible, to win.

As stated earlier, Illinois does not criminalize refusal to consent under current law, but lawmakers could well be emboldened to pass such legislation that passes muster under Birchfield, especially since Illinois already has some of the more restrictive DUI laws in the country; for example, there is no limit to the “lookback” period to determine the number of prior convictions and, in many cases, anything above a first DUI carries a long mandatory jail sentence.

Partner with Zealous Attorneys

For an effective DUI defense from an experienced Schaumburg criminal defense attorney, contact Glasgow & Olsson. We routinely handle cases in Cook County and nearby jurisdictions.

(photo courtesy of KOMUnews)

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