Can states make you abandon your Fourth Amendment rights if you want to enjoy the "privilege" of driving? That's the question at the heart of one of the most consequential cases that the Supreme Court will decide this term, in terms of practical impact upon ordinary Americans. Birchfield v. North Dakota involves challenges to Minnesota and North Dakota statutes that make it a crime for drivers to refuse warrantless chemical tests of their blood, breath, or urine to detect the presence of alcohol. The Supreme Court consolidated three cases to be reviewed. Two involved individuals who were convicted for declining to take a blood test and a breath test, respectively; the third involved an individual who refused field sobriety tests, was taken to a hospital and subjected to a blood test, and was later convicted of drunk driving.
The Supreme Court has long held that the Fourth Amendment generally requires police to obtain a warrant before conducting a search. But in the lead case under review in Birchfield, the North Dakota Supreme Court held that because driving is a "privilege," not a "constitutional right," and because North Dakota law requires police to inform drivers that they will be criminally punished if they refuse to be tested, drivers can be said to have given their "consent" to the test. In exchange for the "privilege" of driving, then, people effectively waive their right to refuse to submit to a physical intrusion that cannot reasonably be described as anything other than a search.
This reasoning is positively Orwellian, and the Court should squarely reject it.
The Supreme Court has long held that searches conducted without a warrant are inherently "unreasonable" and therefore unconstitutional unless an exception applies. Exceptions include searches incident to arrest that are designed to protect officer safety or preserve evidence; "exigent circumstances" in which the needs of law enforcement are particularly compelling; and an individual's consent to a search. There is no plausible argument that the chemical tests required by the North Dakota and Minnesota laws are not searches -- they are deliberate intrusions upon individuals' bodily integrity, conducted for the purpose of collecting evidence of a crime. If no exceptions to the warrant requirement apply, criminally punishing people for refusing to submit to a test necessarily violates the Fourth Amendment -- people are fully within their rights to refuse the test, and the government cannot punish people for simply asserting their constitutional rights.
The North Dakota Supreme Court below concluded that an exception did apply and therefore upheld the challenged law. The court reasoned that driving was not a "constitutional right" but a state-created "privilege," "subject to reasonable control by the State under its police power." It went on to determine that drivers who are informed that "refusal to take the test directed by the law enforcement officer is a crime" and do not refuse to be tested can be said to have consented to the test. The court explained that "consent to a chemical test is not coerced and is not rendered involuntary merely by a law enforcement officer's reading of the implied consent advisory that accurately informs the arrestee of the consequences for refusal." Further, the court suggested that even absent consent, the law would pass constitutional muster. The "touchstone of the Fourth Amendment is reasonableness," the court stated, "which is assessed by balancing the promotion of legitimate governmental interests with the intrusion on an individual's privacy." Emphasizing the "magnitude of the drunken driving problem" that the government sought to confront and highlighting the "diminished expectation of privacy" that licensed drivers have "because [they are] presumed to know the laws governing the operation of the motor vehicle," the court easily concluded that the criminal refusal statute "satisfies the general reasonableness requirement of the Fourth Amendment."
This analysis is fatally flawed in at least three respects.
First, the court asserted without analysis that driving on the roads is a "privilege" rather than a "constitutional right," apparently because one needs to secure the state's permission in order to drive. But state governments require people to secure permission before they may engage in any number of activities that the Supreme Court has held to be "rights." The Supreme Court has held that individuals have a fundamental right to bear arms in self-defense without suggesting that states may not license firearm ownership. It has held that individuals have to a right to choose their field of private employment without suggesting that states are forbidden to license the practice of medicine. There is no constitutional right that is not subject to states' police powers to protect life, liberty, and property through means calculated to do so. It does not follow that all of our rights are in fact state-created privileges. Travelling by vehicle is among the innumerable activities that people can engage in which are not inherently injurious to others, and it is thus a right protected by the Fourteenth Amendment's Due Process of Law Clause -- a provision that prohibits state burdens on individual freedom that are not calculated to serve a constitutionally proper end of government.
Even more problematic is the court's conclusion that drivers' "consent" to chemical tests is "not coerced." This makes nonsense of words. Confronting someone with the choice of adhering to the will of another person or group of people or being subjected to physical force is the very essence of coercion. Would anyone deny that someone who is told by a government official that they must vote for a particular political candidate or be criminally punished is being "coerced"? Such a "consent"-based exception to the warrant requirement would certainly swallow the rule.
Finally, the court's application of a "general reasonableness" test offers evidence that the government-friendly rational-basis test -- the default standard of review in constitutional cases that do not implicate rights deemed "fundamental" by the Supreme Court -- is influencing the analysis of burdens on constitutional rights that the Court has specifically instructed lower courts to vigilantly protect. This development should be profoundly troubling to anyone who is concerned with the rule of law, as the rational-basis test has long served as an occasion for judicial rationalization of whatever the political branches churn out. Here, the court identified the prevention of drunk-driving as a "legitimate governmental interest" (a term drawn from the Court's now-canonical formulation of the rational-basis test), asserted that drivers could reasonably be presumed to know the law, and called it a day without any genuine effort to assess the fit between ends and means -- such lack of effort being a hallmark of rational-basis review. As noted above, the Court has insisted that "searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment" (emphasis added) unless they fall within one of "a few specifically established and well-delineated exceptions." Simply put, ad hoc balancing with a thumb on the scale of the government has no place here. (Or anywhere else in American law, for that matter.)
There is no question that drunk driving represents a genuine threat to public safety, and that it is constitutionally proper for the government to seek to prevent it. But government officials may not pursue a constitutional end through unconstitutional means, and judges are duty-bound to independently and impartially interpret and give effect to the law of the land. That requires judicial engagement -- truth-seeking, fact-sensitive judicial review that places the burden on the government to demonstrate that its enactments are carefully tailored to achieve a proper governmental end. If the price of exercising one constitutional right becomes the relinquishment of another, Americans may be made to cede more and more of the liberty promised by the Constitution. The nation's highest tribunal must repudiate such coercion.
For more constitutional commentary, tune into the Institute for Justice's Short Circuit podcast, presented by IJ's Center for Judicial Engagement.