The collection and analysis of a person’s breath, blood, or urine is considered a “search” under the Fourth Amendment, meaning that this collection and analysis is only constitutional if a warrant is first obtained, or if any of the well-established exceptions to the search warrant requirement exist. In the blood-alcohol test realm, the two most frequently discussed exceptions are the exigency (urgency) exception, and the search incident to arrest.
In 2013, the Supreme Court decided Missouri v. McNeely, in which it held that the natural dissipation of alcohol in a person’s blood could sometimes create an exigent circumstance, but that the fact that alcohol dissipates does not create a per se exigency allowing for a warrantless blood test of an OVI suspect. A determination of whether an exigency exists and whether a warrant is required prior to collecting a blood sample is to be decided on a case-by-case basis. However, McNeely did leave open the question as to whether the warrantless collection of a blood sample is permitted under the search incident to arrest exception.
In the recently decided case of Birchfield v. North Dakota, the U.S. Supreme Court determined that blood tests are a significant intrusion on an individual’s privacy and that the individual’s privacy interests outweigh the state’s need to obtain evidence in driving under the influence of alcohol prosecutions. As a result, the search incident to arrest exception cannot be used to search an OVI suspect’s blood without a warrant. Breath tests, on the other hand, are far less intrusive than blood tests, and do not allow the government to collect information about the suspect that may be irrelevant to the OVI prosecution. As a result, law enforcement may continue to search suspects’ breath without first obtaining a warrant.
In cases in which a breath test is not feasible and law enforcement wishes to have the blood of a suspect tested for alcohol content, an officer must first obtain a warrant, or may rely on the exigency exception if a true exigency exists – for example, a warrant will be impossible to obtain within a reasonable amount of time.
The most notable impact of Birchfield upon Ohio law is that criminal penalties may no longer be imposed for the refusal of a blood test. In Ohio, an OVI with a refusal is technically a different offense than a regular OVI, which carries greater penalties. In the wake of Birchfield, a suspect cannot be subject to the “OVI with refusal” offense if he or she refuses a blood test. However, suspects may still be charged with the heightened offense if they refuse a breath test. Furthermore, Administrative License Suspensions are considered civil penalties, and may be imposed for the refusal of any type of test. Finally, the refusal of any type of test, including a blood test, may still be used as evidence against a suspect at trial.
In the wake of Birchfield, law enforcement officers should offer breath tests instead of blood tests when investigating a person for OVI when available. Furthermore, officers should seek warrants to obtain blood samples from suspects when breath testing methods are unavailable, and should only rely on the exigency exception when a warrant cannot possibly be obtained.
It is notable that Birchfield does not discuss urine tests, and law enforcement should err on the side of caution when seeking urine tests. Breath testing methods should still be favored over urine tests, and because urine tests could be easily analogized to blood tests by courts, warrants should be obtained prior to seeking urine tests, if possible.
Finally, Birchfield does not discuss blood tests in the driving under influence of drugs context. Part of the reason a breath test can be obtained without a warrant while a blood test cannot in the driving under the influence of alcohol context is because a breath test can adequately serve law enforcement interests when detecting alcohol. However, the same is not true with detecting drugs. As the permissibility of obtaining blood samples without first securing a warrant in the driving under the influence of drugs context is not clear, officers should continue to err on the side of caution and obtain search warrants prior to obtaining blood tests when possible.