Justices Mull the Constitutionality of “Refusal” Statutes

Several states have statutes that make it a crime to refuse to take a breathalyzer if suspected of driving under the influence. Some states, like New Jersey, make refusal a civil offense. The High Court is reviewing statutes in North Dakota and Minnesota that make it a crime for people suspected of drunken driving to refuse to take alcohol tests. Drivers prosecuted under those laws claim they violate the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The justices questioned lawyers representing the states as to why police cannot be required to get a telephonic warrant every time they want a driver to take an alcohol test. “Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant over the phone in Wyoming and 15 minutes to get one in Montana.”  However, this may not be correct.

“Kathryn Keena, a county prosecutor representing Minnesota, suggested some rural areas may have only one judge on call, making it too burdensome to seek a warrant every time. She said even if a warrant were procured, a driver could still refuse to take the test and face lesser charges for obstruction of a warrant than for violating drunken driving test laws.”

Telephonic warrants have also been the rule in New Jersey since 2009. Recently, the New Jersey Supreme Court reversed itself, reverting back to the federal standard requiring police to obtain a warrant after establishing they have probable cause. Under the more stringent standard of using telephonic warrants, police were complaining it took to long to reach a judge. Police also used consent forms they carried, causing an outcry from the defense bar that such a practice may lead to further abuses. Justice Anthony Kennedy said the states are asking for “an extraordinary exception” to the warrant rule by making it a crime for drivers to assert their constitutional rights.

The problem for the states is that without the threat of a refusal penalty, the only proof available at trial as to whether someone was intoxicated while driving is the observations made by police. Observations, however, cannot prove blood alcohol level.