Police, prosecutors, and lawmakers have routinely passed strict laws against drunk driving and have sometimes engaged in tactics to enforce DWI laws which abridge defendants’ rights.

In 2013, a case came before the Supreme Court called Missouri v. McNeely. The case addressed a claim by police that they could conduct a blood test to determine blood alcohol concentration (BAC) even if the driver did not consent to the test and even if no warrant had been obtained. The police said this was justified because of exigent circumstances – the body was metabolizing the alcohol and the evidence of impaired driving was being destroyed.

Fortunately, the Supreme Court ruled the body’s metabolic processing of alcohol was not an exigent circumstances and said a warrant (or consent) was required or a blood test was an unconstitutional search.

Unfortunately, however, the rights protected in McNeely to be free of warrantless blood searches are now being abridged throughout the United States. The Supreme Court has now been forced to become involved again in litigating the rights of DWI defendants and the court’s decision could have a profound impact on the rights of alleged impaired drivers nationwide.

Supreme Court to Address DWI Defendants Rights

Two major cases have come before the U.S. Supreme Court:  Bernard v. Minnesota and Birchfield v. North Dakota. Both cases center on the increasing trend of states to criminalize a refusal to undergo a blood test when suspected of impaired driving.

There are currently 13 states which have made it illegal for defendants to refuse to take a blood test. In these states, drivers are essentially told to consent to a warrantless search or face criminal charges and go to jail… despite the fact McNeely said police either had to get consent or get a warrant before making DWI defendants take blood tests.

More states are expected to pass similar criminal laws, so the decision the Supreme Court will make on the constitutionality of these criminal laws is going to impact every driver nationwide who is suspected of impaired driving.

The court in Hawaii recently addressed the issue of whether it was constitutional to criminalize a refusal to submit to a warrantless blood search, which is essentially the same question the U.S. Supreme Court will be considering. The case involved a driver who had refused consent to a blood test initially. However, when he was told he could be imprisoned for 30 days, he signed the consent form.

The Hawaii Supreme Court held the consent was not given freely, but rather was coerced and the defendant’s constitutional rights were violated. His conviction was reversed.  The decision of the Hawaii Supreme Court, however, do not offer any relief to defendants outside of Hawaii, since the decision applies only in the state.

Hopefully, the Supreme Court will also determine McNeely is undermined by criminal laws imposing penalties for refusal to take a blood test. Defendants are essentially left with the choice of criminal penalties or submitting to a warrantless search. If the Supreme Court decides this is OK, more defendants nationwide can expect to be put into a position of forced consent, as states continue the trend of criminalizing blood test refusal.