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The U.S. Supreme Court heard arguments today testing whether police must get a warrant before forcing a driver to submit to a blood alcohol or breathalyzer test. All 50 states have laws that allow a driver's license to be revoked for such refusal, but a dozen states and the federal government have additional laws that provide criminal punishment - jail terms - for such refusals. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The states concede that breathalyzer tests and blood draws both constitute a search of a person's body. And normally under the Constitution, a search requires a warrant. But the question today was whether states can get around the warrant requirement by enacting laws that make refusing to submit to a test itself a crime.
Three defendants from North Dakota and Minnesota are challenging their convictions for refusing to take either a drug alcohol or breathalyzer test. Their lawyer, Charles Rothfeld, told the justices that the fundamental problem with the statutes is that they can't make it a crime to assert a constitutional right, namely the right to be free from bodily search unless the police get a warrant.
Justice Alito - one way to look at it is that the defendants are reneging at a bargain, and the bargain is we give you a license to drive. And in exchange, you agree to a blood-alcohol test. Lawyer Rothfeld rejected that idea noting that the defendants here had no idea they had ever consented to that bargain. Justice Breyer suggested that breathalyzer tests are much different from blood-alcohol tests. There's no bodily intrusion, except a straw in the mouth to blow into. There's no pain, and it can be done roadside.
Justice Kagan - couldn't we see a breathalyzer test as necessary to measure evidence of alcohol in the blood before it dissipates?
But if all that sounds as though the court was friendly to the idea of warrantless blood alcohol and breathalyzer tests, the worm turned quickly when the lawyers for the states and the federal government began to present their arguments.
Lawyer Thomas McCarthy, representing North Dakota, tried to tell the justices that they'd be putting the states, quote, "in a terrible bind" if search warrants are required for these tests. Justices both liberal and conservative pounced.
Justice Breyer - Wyoming has a system for getting a warrant that takes on average five minutes, we're told, Montana, 15 minutes. Justice Kagan - more than 40 states have set up electronic systems for getting warrants. Lawyer McCarthy maintained that in rural North Dakota, it would take a half hour to an hour to get a warrant.
Justice Kennedy - why is it harder to get somebody on the phone in a rural area than in a busy city? I think, he added puckishly, that people in rural areas were sitting, waiting for the phone to ring. Rural areas have fewer resources, replied McCarthy, fewer people to process warrant requests. Justice Sotomayor - so that excuses you from a constitutional requirement? We're not going to bend the Fourth Amendment to give a pass to North Dakota. Justice Kagan - if you can get a warrant in 10 or 15 minutes in other similar states, what's the justification for your not getting a warrant? Justice Kennedy - you're asking for an extraordinary exception, and you're not answering the question.
Lawyer Kathryn Keena for Minnesota didn't have any more luck with her argument. Though, she tried to persuade the justices that they were blind to the facts of life in rural Minnesota and North Dakota, while she, who had grown up in a town of 2,000, could tell them a thing or two.
Her argument suffered further when the federal government's Ian Gershengorn argued against a warrant requirement with contradictory data. It is urban areas that have trouble meeting the warrant requirement, he maintained, because a city like New York is so busy that its courts may have time for terrorism warrants, but not warrants to get a blood alcohol test.
But in his rebuttal time, lawyer Rothfeld maintained that studies conducted by the National Highway Transportation Safety Administration show that routine warrant procedures in rural and urban areas alike drive down test refusals and drive up DUI convictions. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.