As the penalties increase across the nation for DUI – driving under the influence – more and more drivers are refusing to take the blood and breath tests that measure the level of their intoxication. These drivers are instead accepting the suspensions of their driver’s licenses – typically a civil penalty – to avoid being tested and criminally prosecuted for driving under the influence.

However, drivers should be aware of a recent ruling by the United States Supreme Court. In June, the Supreme Court determined – by a 5-to-3 margin – that states can make it a crime for a driver to refuse a breath test for drunk driving. In most cases, however, drivers have the right to refuse a blood test for DUI, and the justices limited the ability of states to penalize drivers who refuse the blood test.

The Supreme Court’s decision settled three cases out of Minnesota and North Dakota in which the plaintiffs contended that mandatory breathalyzer exams constitute unreasonable search and seizure, thus violating the Fourth Amendment to the U.S. Constitution. The court decided that mandatory breathalyzer tests can remain legal and do not require a warrant, but blood testing requires a warrant because blood testing is more “intrusive” than breath testing.


Writing for the court’s majority, Justice Samuel Alito contended that a breath test does not result in “significant privacy concerns.” Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the majority. Both justices would require a search warrant for breath testing as well as blood testing. Justice Clarence Thomas also dissented, but Justice Thomas criticized what he called “hairsplitting” between breath and blood tests, and he insisted that warrants should not be required for either.


Many states will revoke the drivers’ licenses of motorists who refuse to take a breath test, but in most of those states, license revocation is considered a civil rather than a criminal penalty. However, the justices upheld the position of Minnesota and North Dakota, states that impose criminal penalties – like time in jail – for a driver’s refusal to submit to a breathalyzer examination.

Still, the justices also in effect threw out the laws of thirteen states that penalized drivers for refusing to give blood samples when requested by a police officer without a warrant. Those states are Minnesota, North Dakota, Indiana, Kansas, Louisiana, Alaska, Florida, Hawaii, Nebraska, Rhode Island, Tennessee, Vermont, and Virginia. Although the justices conceded that a driver’s blood alcohol content (BAC) level may decline before a warrant can be obtained, a majority nevertheless held that warrants must be obtained for blood tests to protect the constitutional rights of suspects.


Previously, the Supreme Court has ruled that law enforcement officers cannot search a driver or a vehicle after an arrest before obtaining a warrant except in self-defense or to preserve evidence of a crime. In 2013, the justices ruled that police cannot conduct blood tests for drunk driving without a warrant. However, the 2016 cases out of Minnesota and North Dakota raised a somewhat different issue – whether states can arrest those who refuse DUI blood or breath testing.

While defending Southern California clients charged with driving under the influence, an Orange County DUI lawyer will typically challenge any and all of the tests used by the police to determine if a defendant was driving under the influence of alcohol or drugs. A BAC level of 0.08 percent is the legal limit for operating a motor vehicle in California. DUI suspects in our state may be compelled to take a breathalyzer test only after a formal arrest. The test must be administered by law enforcement officers or by other licensed professionals.


In the state of California, for a standard DUI charge, the breath test is usually conducted. Requests for blood and urine tests are rare except in cases involving other drugs or in DUI felony cases with injuries or fatalities. After an arrest for driving under the influence in California, a driver’s refusal to submit to a chemical test can lead to an automatic suspension of the suspect’s driver’s license.

However, even if you fail a breathalyzer test for DUI, you are still innocent until the state proves your guilt beyond a reasonable doubt. You have the right to be represented by an attorney who can challenge both your driver’s license suspension and the driving under the influence charge that you face. If you are arrested for DUI in California, you should understand that penalties can be severe if you’re convicted, so you’ll need the counsel of a good DUI lawyer at once.


If you are stopped in traffic because the police suspect that you are driving under the influence, show the police your license, registration, and insurance card – if and when you are asked to produce them – but politely decline to answer any questions an officer may ask about when you last ate and what, where you are coming from or going, or when you started and stopped drinking. If you’ve had a drink, don’t deny it, but simply decline to answer the question.


You should also refuse to take the field sobriety test. In the state of California, you are not required to submit to any test related to alcohol until and unless you have been formally taken into custody. Of course, your refusal to test will itself probably lead to being arrested for DUI. When you are booked for DUI, contact an experienced DUI attorney at once. A good Orange County DUI lawyer, for example, will explain your legal options, guide you through the process, protect your rights, and work to have your DUI charge reduced or dismissed.

In California, a first-offense misdemeanor DUI conviction is punishable by up to six months in jail, three-to-five years on probation, and a fine of $300 to $1,000. In Sacramento, Los Angeles, Alameda, and Tulare counties, you’ll also be ordered to install an ignition interlock device in your personal vehicle. If you caused an injury to another person while driving under the influence, you could be charged with a felony, and if you’re convicted, you could serve up to three years behind bars.

Of course, the best way to avoid this kind of trouble is to follow the simple advice you’ve heard again and again. Don’t drink and drive. Plan in advance if you intend to drink anything, and if necessary, use a ridesharing service, call a taxi, or have a trusted friend act as a designated driver. More than 10,000 of us in the United States die every year in accidents involving drunk drivers, and more than 150,000 California drivers are charged with DUI each year. Be sure that you do not fall into either category.