Last June, the United States Supreme Court issued a decision in a DUI case that many DUI lawyers had been closely following. The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota. What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer test and a blood test when requested to do so by the police. There is no such law in Illinois. A refusal to take a breathalyzer test or blood test can result in the suspension of your driving privileges in Illinois but is not an actual crime in Illinois. However, 13 other states make a refusal to submit to a breathalyzer test or blood test a crime. Both North Dakota and Illinois have “implied consent” laws which means that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested to by the police. Illinois warns you that failure to consent to a breathalyzer test could result in the suspension of your driving privileges while North Dakota warns you that failure to consent to a breathalyzer test could result in criminal prosecution. Refusing to submit to a breathalyzer or a blood test is not a crime in Illinois. The refusal to submit to such testing can only result in the suspension of your license for a period of time, usually one year, if this is your first DUI. Sometimes, refusing to submit to a breathalyzer or blood test could benefit the underlying DUI case making it harder for the state to prove their case with test results, but will not stop the suspension of your driver’s license. Refusing to submit to a breathalyzer test or a blood test is a misdemeanor in North Dakota. By making it a crime to refuse to submit to a breathalyzer or a blood test, a driver would be more likely to consent to such testing, thereby making it easier for the state to prove guilt in an underlying DUI prosecution.
In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test. The majority opinion was written by Justice Alito who held that “because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Since it’s considered a search incident to a lawful arrest, a warrant is not needed.
Since the case involved 3 separate DUI arrests, there were 3 different outcomes. One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned. The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld. The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial court in light of the holding that a warrant is required for a blood test.
This is clearly a split decision in which the Justice’s bargained with each to come up with a consensus decision. It does seem unfair to criminally prosecute people for exercising their constitutional right to not incriminate themselves and to not have to submit to a search. Imposing criminal penalties upon people who choose to remain silent seems unfair.
James Dimeas is a nationally-recognized, award-winning, DUI lawyer with over 27 years of experience handling DUI cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois.” The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois”. Recently, James Dimeas was recognized as a “Top 100 Criminal Defense Lawyer in the State of Illinois for the Year 2018” by the American Society of Legal Advocates. James Dimeas was named a “Best DUI Attorney.” Expertise named James Dimeas a “Best Criminal Defense Lawyer in Chicago.” The National Trial Lawyers recognized James Dimeas as a “Top 100 Criminal Defense Trial Lawyer.” The American Institute of Criminal Law Advocates named James Dimeas a “10 Best Attorney for Client Satisfaction.” AVVO rates James Dimeas as “Superb”, the highest rating possible for any DUI lawyer in the United States.
If you are facing a DUI in Chicago, Cook County, DuPage County, Kane County, or Lake County, you can contact James Dimeas anytime free and confidential consultation. You can always talk to James Dimeas personally by calling him at 847-807-7405.
Birchfield v. North Dakota, Supreme Court Docket No: 14-1468, 576 US___(2016).
Can You Be Charged With a DUI If You Pull Over “To Sleep it Off,” by James G. Dimeas, Chicago Criminal Lawyer Blog, November 9, 2017.
Arrested for a DUI. Warnings to Motorist and Notice of Statutory Summary Suspension. What Does This Mean”, by James G. Dimeas, Chicago Criminal Lawyer Blog, August 21, 2017.