Criminalizing Refusal

Criminalizing Refusal1
By Kasey Youngentob, Vanderbilt University Law School, 2L

On Oct. 10, 2013, Mr. Birchfield drove himself into a ditch in a central North Dakota county. Upon arrival, the responding highway patrolman, believing Mr. Birchfield was intoxicated, requested that Mr. Birchfield submit to a field sobriety test. After failing the field sobriety test, Mr. Birchfield subsequently failed a preliminary breath test. Since Mr. Birchfield failed both of these tests, the patrolman placed him under arrest and read him the implied consent advisory.

The implied consent advisory read to Mr. Birchfield was substantially similar to the “agreement” that every American driver makes with the state in exchange for his or her driver’s license. Despite the ubiquity, and often-seeming necessity of driving, these laws are grounded in the notion that driving is a privilege. Typically, these laws provide that as a condition of driving, a driver must submit, upon request of a law enforcement officer, to a chemical test to detect the presence of drugs or alcohol. However, an officer may only make this request if he or she has probable cause to believe the driver is intoxicated. Upon any refusal of a chemical drug test, a driver faces remedial or regulatory penalties such as the loss of the defendant’s license. Additionally, and perhaps more importantly, a driver’s failure to consent can be used as proof of the defendant’s guilt at trial. As a whole, these increased penalties have been extremely successful in decreasing drunk driving fatalities. These implied consent statutes, at least prior to their most recent innovation, have withstood all constitutional attacks. In upholding traffic safety laws, the Court often points to the high rate of fatalities caused by irresponsible driving.

Although implied consent laws have been exceptionally successful, thirteen states, including Mr. Birchfield’s home, North Dakota, passed significantly more aggressive implied consent laws. In their newest iteration, these aggressive implied consent laws make refusal to comply with a chemical test either a misdemeanor or a felony. These statutes are a significant increase in penalty over the mere temporary loss of a driver’s license. Undoubtedly, more aggressive implied consent laws were passed at least in part at the behest of prosecutors; who viewed the increased penalties as an opportunity to close a loophole. This loophole exists because it is more difficult to prosecute a driving while under the influence offense with only an inference against the defendant rather than a chemical test failure. However, in addition to making the prosecution of a defendant easier, these more stringent statutes give a prosecutor an opportunity to essentially double prosecute the crime of driving while under the influence. Under the new, challenged statutory regime, a prosecutor can prosecute the defendant for both violating the statute for refusing the chemical test, and for driving while under the influence. For example, an officer can request that a suspect comply with a warrantless chemical test, and the suspect may refuse. This automatically triggers at a minimum a misdemeanor violation of the criminalization statute. Next, an officer can request, and almost certainly will receive, a warrant to execute a chemical drug test, that a suspect may also fail. Thus, at trial the prosecutor can charge the defendant for his or her failure to comply with a warrantless chemical test and the subsequent failure of the chemical test.

As he sat in the rear of the patrol car, Mr. Birchfield was read one form of this more harsh implied consent law. Thus, when Mr. Birchfield refused to consent to a chemical test, he was charged with a class B misdemeanor in violation of N.D.C.C. § 39-08-01. Mr. Birchfield challenged the charge as a violation of his Fourth Amendment rights.

On Dec. 11, 2015, the United States Supreme Court granted writ of certiorari in Birchfield v. North Dakota, officially addressing the question of whether states may enforce statutes criminalizing refusal to consent (“criminalization statute” or “refusal statute”) to breathalyzer tests during a traffic stop. In granting review, the Supreme Court narrowed the question to whether or not a refusal statute violates a suspect’s Fourth Amendment right against unreasonable search. Although the North Dakota statute may violate the Fourth Amendment, criminalization statutes hold another, more important constitutional implication. By narrowing its focus to only the Fourth Amendment question the Court has missed an opportunity to extend the Fifth Amendment right against self-incrimination.

Application of the Fifth Amendment provides a superior basis for striking down state criminalization statutes. Lower court opinions demonstrate the difficulty of applying the Court’s Fourth Amendment precedent, especially when no search occurs. To the extent that McNeely v. Missouri discounted lower courts’ ability to interpret its limitation on exigent circumstances, it was wrong. Almost uniformly, the lower courts vanquished the import of McNeely by continuing to read in broad implied consent powers and alternative exceptions to the warrant requirement. Only the Kansas Supreme Court, applying Washington v. Glucksberg’s substantive due process test found the implied consent law unconstitutional. Perhaps, this counsels for a decision on Fourth Amendment grounds. However, both the plurality and dissent in McNeely made it clear that the Court wished to leave intact most of the State’s regulatory power to enforce its drunk driving laws. Ruling on Fourth Amendment grounds may unsettle the foundation of many of the State’s tools for combatting drunk driving. Further, ruling on Fifth Amendment grounds would allow the Court to avoid a Fourth Amendment reasonableness analysis, which lower courts have similarly had difficulty adapting on a case-by-case basis. Ultimately, if the Court ruled on Fifth Amendment grounds it would allow states to continue to employ implied consent laws, while striking down a particularly egregious violation of the right against self-incrimination.

After Neville v. South Dakota, a state may create various regulatory penalties, such as suspending the defendant’s license, or imposing a negative inference about a defendant’s culpability, without violating an individual’s Fifth Amendment right against self-incrimination. However, states have gone beyond the broad tools allowed by McNeely when they implemented implied consent laws that make it a criminal offense by itself to refuse to comply with a warrantless breathalyzer test. The Supreme Court has provided that “no person shall be compelled; in any criminal case; to be a witness; against himself.”2 Thus, when Mr. Birchfield, sitting in the rear of the patrol car, refused to comply with a warrantless breathalyzer test, his Fifth Amendment right against self-incrimination was implicated.

1Full case comment forthcoming in VANDERBILT EN BANC


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