CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, February 2, 2016

Lamparello & Swann on Refusing Consent to a Warrantless Blood Test

Adam Lamparello and Cynthia G Swann (Indiana Tech - Law School and Indiana Tech - Law School) have posted Birchfield v. North Dakota: Why the United States Supreme Court Should Rely on Riley v. California to Hold that Criminalizing a Suspect's Refusal to Consent to a Warrantless Blood Test Violates the Fourth Amendment on SSRN. Here is the abstract:

Although the interest in deterring drunk driving and protecting the public cannot be overstated, the importance of protecting privacy rights is far too often understated. In an era where technological advancements enable law enforcement to investigate criminal activity in a manner the Founders could not possibly foresee, few would doubt that the benefits of technology also bring grave threats to individual and collective liberty. However, as courts struggle to balance privacy rights with the investigatory powers that new technology enables, they must not overlook the more conventional threats to privacy, as present in Birchfield, that often lurk under the Fourth Amendment radar. States cannot – and should not – be allowed to weaken privacy protections through laws, such as N.D.C.C. §§39-20-1 and 39-08-01, compelling motorists, under threat of criminal prosecution, to consent to warrantless blood tests that, at least in some cases, are neither necessary nor reasonable. If N.D.C.C. §§39-20-1 and 39-08-01 are upheld, the Court will send a message that states can circumvent the Fourth Amendment with legislation that admittedly achieves worthy policy objectives, yet does so at the expense of core constitutional protections. In Riley, the Court’s decision recognized this fact, and implicit in its holding was the admonition that the objective of serving the public good, such as by deterring drunk driving, must not be achieved through procedures that make the public less free and the Constitution less relevant.

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