WASHINGTON – Justices on the U.S. Supreme Court expressed skepticism about state laws requiring that drivers let police test their breath and bodily fluids for alcohol without a search warrant.
The court heard oral arguments in a case Wednesday centering on laws in North Dakota and Minnesota, with the outcome possibly affecting how police conduct DUI investigations in other states with similar laws that make it a crime to refuse an alcohol blood, breath or urine test, even when police don’t have a warrant.
Attorneys for the states argued drivers make a bargain with law enforcement when they get a driver’s license, implicitly agreeing to be tested for alcohol even without a warrant.
They told the court that getting a warrant can take an hour or longer in rural areas, enough time for drunken drivers to sober up.
Justice Sonia Sotomayor seemed unconvinced that the time factor would be enough reason to allow an exception to the Fourth Amendment of the Constitution, which requires warrants for most searches.
“What is it that justifies us doing away with something as important as the Fourth Amendment?” Sotomayor asked.
“You are asking for an extraordinary exception here,” Justice Anthony Kennedy said.
Other justices asked why states could not devise a way for police to use cellphones or other technology to quickly get a warrant.
They asked repeatedly if the states would still defend their laws if warrants could be obtained instantly.
“You are not answering the question,” Kennedy told an attorney for Minnesota before justices moved on.
The court appeared more open to allowing police not to need a warrant to require a breath test, which they said was less intrusive than a blood test.
“What’s wrong with a Breathalyzer?” Justice Stephen Breyer asked an attorney for the man challenging the states. “A blood test might be a different thing,” the justice said, adding that blood tests involve risks and pain.
Justice Elena Kagan said a breath test “is about as uninvasive as a search can be.”