Abstract
N.D.C.C. §39-08-01, which criminalizes a motorist’s refusal to consent to a warrantless blood test regardless of the circumstances, cannot withstand constitutional scrutiny. First, in violation of Missouri v. McNeely, the statute upon which criminalization is predicated – N.D.C.C. §39-20-01 – at least partially violates the Fourth Amendment. Specifically, N.D.C.C. §39-20-1 creates a per se exigency exception to the warrant requirement, thus permitting warrantless blood draws of every motorist, regardless of whether exigent circumstances are present and justify dispensing with the warrant requirement. Second, law enforcement officers have less intrusive means available at their disposal to obtain the same evidence and thus establish probable cause that a motorist is driving while intoxicated. Third, criminalizing a motorist’s refusal to consent to a warrantless blood test in every situation, particularly where the motorist has consented to breathalyzer and urine tests, represents an unnecessary and unprincipled expansion of the implied consent doctrine in the same way that warrantless cell phone searches impermissibly exceeded the scope of the search incident to arrest doctrine.Ultimately, if N.D.C.C. §§39-20-1 and 39-08-01 are upheld, the Court will send a message that states can circumvent the Fourth Amendment with legislation that admittedly achieves worthy policy objectives, yet does so at the expense of core constitutional protections. In Riley v. California, the Court’s decision recognized this fact, and implicit in its holding was the admonition that the objective of serving the public good, such as by deterring drunk driving, must not be achieved through laws that make the public less free and the Constitution less relevant.
Published Version
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