Birchfield v. North Dakota: A New Exception to the Warrant Requirement

Dictionary definition of the word Warrant . Toned Image

By: Alex Lindvall


Typically, the police need a warrant before they are allowed to search either you or your property.  There are, however, several exceptions to this requirement. For example, once you have been arrested, the police do not need a warrant to search your pockets for weapons, etc.  This is called the “search incident to arrest” exception.  The Supreme Court recently held that drivers arrested for drunk driving do not have a Fourth Amendment right to refuse warrantless breath-alcohol tests.

Birchfield v. North Dakota.

The case focused primarily on two arrestees: Danny Birchfield and William Bernard.  After their arrests, Birchfield refused to submit to a warrantless blood test; Bernard refused to submit to a warrantless breath test. These two men were each criminally charged under their State’s implied consent statute.  The Court determined whether these two men had a Fourth Amendment right to refuse their tests.

The Supreme Court overturned Birchfield’s conviction, holding that a motorist cannot be compelled to submit to a blood draw absent a warrant.  Birchfield v. North Dakota, No. 14–1468, slip op. at 37 (S. Ct. 2016).  “Blood tests are…different,” the Court held.  Id. at 22.  “They require piercing the skin and extract a part of the subject’s body.”  Id.  Therefore, because these bodily intrusions are so significant, police must obtain a warrant before administering these tests.

The Court, however, upheld Bernard’s conviction, holding that a warrant is not required to subject an arrestee to a breath alcohol test.  Id. at 33.  Justice Alito, writing for the five-member majority, balanced the government’s interests against individual privacy interests, and determined that “[t]he impact of breath tests on privacy is slight, and the need for BAC testing is great.”  Id.  As a result—because these tests involve no more than “blowing into a tube” and the State has such a strong interest in preventing drunk driving—the Fourth Amendment “permits warrantless breath tests incident to arrests for drunk driving.”  Id. at 23, 33.


In short, the Birchfield Court held that police must obtain a warrant before subjecting arrestees to blood draws.  Police, however, do not need to obtain a warrant before subjecting arrestees to breath alcohol tests, because breath alcohol tests fall categorically within the search-incident-to-arrest exception to the warrant requirement.  For better or for worse, the Birchfield Court has expanded the “few specifically established and well-delineated exceptions” to the warrant requirement.