"Not without a search warrant following a recent United States Supreme Court ruling in which the Court in a divided opinion, made a distinction between blood-alcohol content (BAC) tests, which require the piercing of the skin, and breath tests, which it found are not particularly painful, intrusive or embarrassing.
BAC is typically determined through a direct analysis of a blood sample or by using a machine to measure the amount of alcohol in a person's breath. To help secure drivers' cooperation with such testing, states such as Rhode Island, have also enacted “implied consent” laws that require drivers to submit to BAC tests.
Originally, the penalty for refusing a test was suspension of the motorist's license. Over time, however, States have toughened their drunk-driving laws, imposing harsher penalties on recidivists and drivers with particularly high BAC levels. Because motorists who fear these increased punishments have strong incentives to reject testing, some states, now make it a crime to refuse to undergo testing (in Rhode Island it is NOT a crime if you refuse testing but it is a crime if you are refuse testing on a second or subsequent refusal to submit to testing)."
The case was granted certiorari and appeared before the United States Supreme Court after a North Dakota man was arrested by a state trooper for suspicion of drunk driving. The state trooper who arrested the alleged drunk driver advised him of his obligation under North Dakota law to undergo BAC testing and told him, as state law requires, that refusing to submit to a blood test could lead to criminal punishment. The driver refused to let his blood be drawn and was charged with a misdemeanor violation of the refusal statute. He entered a conditional guilty plea but argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected his argument, and the State Supreme Court affirmed.
In contrast, a Minnesota man suspected of drunk driving was arrested and transported by the police to the station. There, officers read him Minnesota's implied consent advisory, which like North Dakota's informs motorists that it is a crime to refuse to submit to a BAC test. The driver refused to take a breath test and was charged with test refusal in the first degree. The Minnesota District Court dismissed the charges, concluding that the warrantless breath test was not permitted under the Fourth Amendment. The State Court of Appeals reversed, and the State Supreme Court affirmed.
In analyzing both cases, the Court rationalized that because breath tests are significantly less intrusivethan blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.
What is key to this ruling is that the Court determined that motorists may NOT be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State (such as Rhode Island) to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. According to the Court, there 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.
What does this mean for Rhode Islanders? According to Rhode Island officials:
“We are reviewing the decision and what, if any, impact it may have on existing Rhode Island DUI law or practice,” said Amy Kempe, spokeswoman for Rhode Island Attorney General Peter F. Kilmartin.
State police Lt. Col. Todd Catlow said, “What court is saying, that as far as [Rhode Island's law on] the breath test, that's okay. As far as the blood test, we are not sure. We're going to discuss it with the AG's office and get some guidance from them.”
If you find yourself in a similar situation, it is crucial that you consult with a Rhode Island DUI Lawyer who can help guide you through the process. For a free consultation, please contact the Law Offices of Kensley R. Barrett, Esq. for more information.
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