Three people – two in North Dakota and one in Minnesota – are challenging blood alcohol test refusal laws in a consolidated case in which the United States Supreme Court will hear oral arguments Wednesday.

At issue is whether, without a search warrant, a state may criminalize a person’s refusal to take a chemical test to detect the presence of alcohol in the person’s blood. 

“It’s a constitutional argument,” Bowling Green attorney Alan Simpson said. “Does the state have a right to invade your body without a warrant is what this is about.”

In Kentucky if a driver is pulled over on suspicion of intoxicated driving and refuses to take a breath or blood test, that person’s driver’s license is automatically suspended for 120 days and could under certain circumstances be suspended up to six months by a judge. It is not considered a separate criminal offense, but it is in some cases an aggravating circumstance that can potentially result in additional jail time on a second or subsequent DUI conviction. 

“It is quasi-criminal because of the way the (Kentucky) statute is written,” Simpson said. “If you refuse to take a chemical test in Kentucky … you lose your license for the refusal separately even if you are found not guilty (of the DUI). You could be subjected to double the minimum jail time if convicted (on second or greater offenses). Your license will be pretrial suspended, meaning it is suspended before you are found guilty if you refuse to take the test. 

“There are consequences to refusing in Kentucky,” Simpson said. 

The federal government on national park land such as Mammoth Cave National Park, along with 12 states–Alaska, Hawaii, Florida, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia – have criminalized the refusal to comply with blood alcohol testing. All 50 states allow warrantless breath tests through their implied consent laws.

“Kentucky DUI law does not actually criminalize refusals,” said First Assistant Warren County Attorney Jill Justice, who prosecutes most of the county’s more than 800 annual DUI cases. “I do not think these cases will impact Kentucky. I think our license suspension sanctions are administrative sanctions, not criminal penalties.”

Justice disagrees with Simpson’s opinion about the case being a Fourth Amendment issue.

“That would be an extremely broad application of the issues being brought before the Supreme Court,” Justice said. “This issue before the Supreme Court appears to be the separate criminal statutes that address refusals. They make refusals a separate criminal offense from the DUI itself. That’s what I think the issue is before the Supreme Court.”

The Department of Justice on behalf of the United States has filed an amicus brief, meaning that the U.S. is not a party to the case but has a strong interest in the outcome. 

“The Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), which conducts research and develops traffic safety programs, endorses chemical-testing requirements and criminal penalties for drivers who refuse to comply,” according to the DOJ brief filed in the case.

“In sum, states rules that permit warrantless breath testing based upon probable cause of intoxication appropriately account for the strong public interests and very modest intrusion here,” according to the DOJ brief. “The probable cause standard familiar to law enforcement officers is one this court has commonly held sufficient to support warrantless intrusions. … Considering all the circumstances, the strong public interests in permitting officers to swiftly obtain evanescent evidence based on probable cause – at the time when they are making an arrest decision based on that same showing – far outweigh the negligible privacy costs of allowing that warrant-less procedure.”

If the Supreme Court were to find that warrantless chemical tests were in violation of the Fourth Amendment, “it could turn DUI prosecution upside down really. Everyone will refuse,” Simpson said.

“It could have a major impact because the argument that is being made in the Supreme Court … is going to be, by getting a driver’s license you have consented to these tests, ergo implied consent. The defendant … in this case is arguing that the state cannot condition permission to drive upon surrendering your constitutional right to resist the test.”

— Follow Assistant City Editor Deborah Highland on Twitter @BGDNCrimebeat or visit bgdailynews.com.