2160 136 SUPREME COURT REPORTER 136 SUPREME COURT REPORTER tered as a search incident to a lawful...

2160 136 SUPREME COURT REPORTER

2015 WL 5169095 (Pet.Brief)

PER CURIAM.

The judgment is affirmed by an equallydivided Court.

,

Danny BIRCHFIELD, petitioner

v.

NORTH DAKOTA.

William Robert Bernard, Jr., petitioner

v.

Minnesota.

and

Steve Michael Beylund, petitioner

v.

Grant Levi, Director, North DakotaDepartment of Transportation.Nos. 14–1468, 14–1470, 14–1507.

Argued April 20, 2016.

Decided June 23, 2016.

Background: Defendant was convicted ofmisdemeanor refusal to submit to a chemi-cal test, following entry of conditional pleaof guilty in the District Court, MortonCounty, South Central Judicial District,Bruce B. Haskell, J. Defendant appealed.The Supreme Court of North Dakota,McEvers, J., 858 N.W.2d 302, affirmed.Certiorari was granted. Second defendantwas charged with first-degree test refusalunder implied consent law. The DistrictCourt, Dakota County, granted second de-fendant’s motion to dismiss. State appeal-ed. The Court of Appeals, 844 N.W.2d 41,reversed and remanded. Review was

granted. The Supreme Court of Minnesota,Gildea, C.J., 859 N.W.2d 762, affirmed.Certiorari was granted. Licensee appealeddecision of North Dakota Department ofTransportation suspending his drivingprivileges for two years. The DistrictCourt, Bowman County, Southwest Judi-cial District, William A. Herauf, J., af-firmed. Licensee appealed. The North Da-kota Supreme Court, McEvers, J., 859N.W.2d 403, affirmed. Certiorari wasgranted, and all three cases were consoli-dated for argument.

Holdings: The Supreme Court, JusticeAlito, held that:

(1) the Fourth Amendment permits war-rantless breath tests incident to ar-rests for drunk driving;

(2) the Fourth Amendment does not per-mit warrantless blood tests incident toarrests for drunk driving; and

(3) motorists cannot be deemed to haveconsented to submit to a blood test onpain of committing a criminal offense,abrogating State v. Smith, 849 N.W.2d599.

Order accordingly.

Justice Sotomayor filed opinion concurringin part and dissenting in part, in whichJustice Ginsburg joined.

Justice Thomas filed opinion concurring injudgment in part and dissenting in part.

1. Searches and Seizures O14, 23The Fourth Amendment prohibits un-

reasonable searches, and the taking of ablood sample or the administration of abreath test is a search. U.S.C.A. Const.Amend. 4.

2. Searches and Seizures O24The text of the Fourth Amendment

does not specify when a search warrantmust be obtained, but a warrant mustusually be secured; this usual requirement,

2161BIRCHFIELD v. NORTH DAKOTACite as 136 S.Ct. 2160 (2016)

however, is subject to a number of excep-tions. U.S.C.A. Const.Amend. 4.

3. Searches and Seizures O42.1

The exigent circumstances exceptionallows a warrantless search when an emer-gency leaves police insufficient time toseek a warrant. U.S.C.A. Const.Amend. 4.

4. Searches and Seizures O42.1The exigent circumstances exception

permits the warrantless entry of privateproperty when there is a need to provideurgent aid to those inside, when police arein hot pursuit of a fleeing suspect, andwhen police fear the imminent destructionof evidence. U.S.C.A. Const.Amend. 4.

5. Searches and Seizures O24, 42.1While the exigent-circumstances ex-

ception to the search warrant requirementmust be applied on a case-by-case basis,other exceptions to the warrant require-ment apply categorically rather than in acase-specific fashion. U.S.C.A. Const.Amend. 4.

6. Searches and Seizures O24Absent more precise guidance from

the founding era, the Supreme Court gen-erally determines whether to exempt agiven type of search from the warrantrequirement by assessing, on the onehand, the degree to which it intrudes uponan individual’s privacy and, on the other,the degree to which it is needed for thepromotion of legitimate governmental in-terests. U.S.C.A. Const.Amend. 4.

7. Searches and Seizures O24In determining whether to exempt

searches from the warrant requirement,the Supreme Court examines the degree towhich they intrude upon an individual’sprivacy and the degree to which they areneeded for the promotion of legitimategovernmental interests. U.S.C.A. Const.Amend. 4.

8. Searches and Seizures O26

Once placed under arrest, an individu-al’s expectation of privacy is necessarilydiminished, for purposes of the FourthAmendment. U.S.C.A. Const.Amend. 4.


For purposes of the Fourth Amend-ment, a breath test does not implicatesignificant privacy concerns. U.S.C.A.Const.Amend. 4.


Search warrants protect privacy intwo main ways: first, they ensure that asearch is not carried out unless a neutralmagistrate makes an independent determi-nation that there is probable cause to be-lieve that evidence will be found, and, sec-ond, if the magistrate finds probable cause,the warrant limits the intrusion on privacyby specifying the scope of the search—thatis, the area that can be searched and theitems that can be sought. U.S.C.A. Const.Amend. 4.


More targeted exceptions to the war-rant requirement may justify a warrant-less search even when the search-incident-to-arrest exception would not. U.S.C.A.Const.Amend. 4.

12. Automobiles O414, 419

The Fourth Amendment permits war-rantless breath tests incident to arrests fordrunk driving. U.S.C.A. Const.Amend. 4.


The Fourth Amendment does not per-mit warrantless blood tests incident to ar-rests for drunk driving. U.S.C.A. Const.Amend. 4.


As in all cases involving reasonablesearches incident to arrest, a warrant isnot needed when a breath test is adminis-


tered as a search incident to a lawful ar-rest for drunk driving. U.S.C.A. Const.Amend. 4.

15. Searches and Seizures O171A search is reasonable when the sub-

ject consents. U.S.C.A. Const.Amend. 4.

16. Searches and Seizures O172Sometimes consent to a search need

not be express but may be fairly inferredfrom context. U.S.C.A. Const.Amend. 4.

17. Searches and Seizures O23Reasonableness is always the touch-

stone of Fourth Amendment analysis.U.S.C.A. Const.Amend. 4.

18. Automobiles O418Motorists cannot be deemed to have

consented to submit to a blood test on painof committing a criminal offense; abrogat-ing State v. Smith, 849 N.W.2d 599.U.S.C.A. Const.Amend. 4.

19. Automobiles O418, 419Defendant was threatened with, and

he refused, unlawful search, such that hisNorth Dakota misdemeanor conviction forrefusal to submit to a chemical test wasrequired to be reversed, where he wascriminally prosecuted for refusing war-rantless blood draw, such that search herefused could not be justified as searchincident to arrest or on basis of impliedconsent, there was no indication thatbreath test would have failed to satisfystate’s interests in acquiring evidence toenforce its drunk-driving laws against de-fendant, and North Dakota presented nocase-specific information to suggest thatexigent circumstances exception wouldhave justified warrantless search.U.S.C.A. Const.Amend. 4; NDCC 39–08–01.


Voluntariness of consent to a searchmust be determined from the totality of allthe circumstances. U.S.C.A. Const.Amend. 4.

West Codenotes

Held Unconstitutional

NDCC 39–20–01(3)(a)

Syllabus *

To fight the serious harms inflicted bydrunk drivers, all States have laws thatprohibit motorists from driving with ablood alcohol concentration (BAC) exceed-ing a specified level. BAC is typicallydetermined through a direct analysis of ablood sample or by using a machine tomeasure the amount of alcohol in a per-son’s breath. To help secure drivers’ co-operation with such testing, the Stateshave also enacted ‘‘implied consent’’ lawsthat require drivers to submit to BACtests. Originally, the penalty for refusinga test was suspension of the motorist’slicense. Over time, however, States havetoughened their drunk-driving laws, im-posing harsher penalties on recidivists anddrivers with particularly high BAC levels.Because motorists who fear these in-creased punishments have strong incen-tives to reject testing, some States, includ-ing North Dakota and Minnesota, nowmake it a crime to refuse to undergo test-ing.

In these cases, all three petitionerswere arrested on drunk-driving charges.The state trooper who arrested petitionerDanny Birchfield advised him of his obli-gation under North Dakota law to undergo

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


BAC testing and told him, as state lawrequires, that refusing to submit to a bloodtest could lead to criminal punishment.Birchfield refused to let his blood bedrawn and was charged with a misdemean-or violation of the refusal statute. Heentered a conditional guilty plea but ar-gued that the Fourth Amendment prohib-ited criminalizing his refusal to submit tothe test. The State District Court reject-ed his argument, and the State SupremeCourt affirmed.

After arresting petitioner WilliamRobert Bernard, Jr., Minnesota policetransported him to the station. There,officers read him Minnesota’s implied con-sent advisory, which like North Dakota’sinforms motorists that it is a crime torefuse to submit to a BAC test. Bernardrefused to take a breath test and wascharged with test refusal in the first de-gree. The Minnesota District Court dis-missed the charges, concluding that thewarrantless breath test was not permittedunder the Fourth Amendment. The StateCourt of Appeals reversed, and the StateSupreme Court affirmed.

The officer who arrested petitionerSteve Michael Beylund took him to a near-by hospital. The officer read him NorthDakota’s implied consent advisory, inform-ing him that test refusal in these circum-stances is itself a crime. Beylund agreedto have his blood drawn. The test re-vealed a BAC level more than three timesthe legal limit. Beylund’s license was sus-pended for two years after an administra-tive hearing, and on appeal, the State Dis-trict Court rejected his argument that hisconsent to the blood test was coerced bythe officer’s warning. The State SupremeCourt affirmed.

Held :

1. The Fourth Amendment permitswarrantless breath tests incident to ar-

rests for drunk driving but not warrantlessblood tests. Pp. 2172 – 2186.

(a) Taking a blood sample or adminis-tering a breath test is a search governedby the Fourth Amendment. See Skinnerv. Railway Labor Executives’ Assn., 489U.S. 602, 616–617, 109 S.Ct. 1402, 103L.Ed.2d 639; Schmerber v. California, 384U.S. 757, 767–768, 86 S.Ct. 1826, 16L.Ed.2d 908. These searches may never-theless be exempt from the warrant re-quirement if they fall within, as relevanthere, the exception for searches conductedincident to a lawful arrest. This exceptionapplies categorically, rather than on acase-by-case basis. Missouri v. McNeely,569 U.S. ––––, ––––, n. 3, 133 S.Ct. 1552,1559, n. 3, 185 L.Ed.2d 696. Pp. 2173 –2174.

(b) The search-incident-to-arrest doc-trine has an ancient pedigree that predatesthe Nation’s founding, and no historicalevidence suggests that the Fourth Amend-ment altered the permissible bounds ofarrestee searches. The mere ‘‘fact of thelawful arrest’’ justifies ‘‘a full search of theperson.’’ United States v. Robinson, 414U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427.The doctrine may also apply in situationsthat could not have been envisioned whenthe Fourth Amendment was adopted. InRiley v. California, 573 U.S. ––––, 134S.Ct. 2473, 189 L.Ed.2d 430 the Courtconsidered how to apply the doctrine tosearches of an arrestee’s cell phone. Be-cause founding era guidance was lacking,the Court determined ‘‘whether to exempt[the] search from the warrant requirement‘by assessing, on the one hand, the degreeto which it intrudes upon an individual’sprivacy and, on the other, the degree towhich it is needed for the promotion oflegitimate governmental interests.’ ’’ Id., at––––, 134 S.Ct., at 2484. The same mode ofanalysis is proper here because the found-ing era provides no definitive guidance onwhether blood and breath tests should be


allowed incident to arrest. Pp. 2174 –2177.

(c) The analysis begins by consideringthe impact of breath and blood tests onindividual privacy interests. Pp. 2176 –2178.

(1) Breath tests do not ‘‘implicat[e]significant privacy concerns.’’ Skinner,489 U.S., at 626, 109 S.Ct. 1402. Thephysical intrusion is almost negligible.The tests ‘‘do not require piercing theskin’’ and entail ‘‘a minimum of inconven-ience.’’ Id., at 625, 109 S.Ct. 1402. Re-quiring an arrestee to insert the machine’smouthpiece into his or her mouth and toexhale ‘‘deep lung’’ air is no more intrusivethan collecting a DNA sample by rubbinga swab on the inside of a person’s cheek,Maryland v. King, 569 U.S. ––––, ––––,133 S.Ct. 1958, 1969, 186 L.Ed.2d 1 orscraping underneath a suspect’s finger-nails, Cupp v. Murphy, 412 U.S. 291, 93S.Ct. 2000, 36 L.Ed.2d 900. Breath tests,unlike DNA samples, also yield only aBAC reading and leave no biological sam-ple in the government’s possession. Final-ly, participation in a breath test is notlikely to enhance the embarrassment in-herent in any arrest. Pp. 2176 – 2178.

(2) The same cannot be said aboutblood tests. They ‘‘require piercing theskin’’ and extract a part of the subject’sbody, Skinner, supra, at 625, 109 S.Ct.1402 and thus are significantly more intru-sive than blowing into a tube. A bloodtest also gives law enforcement a samplethat can be preserved and from which it ispossible to extract information beyond asimple BAC reading. That prospect couldcause anxiety for the person tested. Pp.2177 – 2178.

(d) The analysis next turns to theStates’ asserted need to obtain BAC read-ings. Pp. 2178 – 2184.

(1) The States and the Federal Gov-ernment have a ‘‘paramount interest TTT in

preserving [public highway] safety,’’ Mack-ey v. Montrym, 443 U.S. 1, 17, 99 S.Ct.2612, 61 L.Ed.2d 321; and States have acompelling interest in creating ‘‘deter-rent[s] to drunken driving,’’ a leadingcause of traffic fatalities and injuries, id.,at 18, 99 S.Ct. 2612. Sanctions for refus-ing to take a BAC test were increasedbecause consequences like license suspen-sion were no longer adequate to persuadethe most dangerous offenders to agree to atest that could lead to severe criminalsanctions. By making it a crime to refuseto submit to a BAC test, the laws at issueprovide an incentive to cooperate and thusserve a very important function. Pp.2178 – 2179.

(2) As for other ways to combatdrunk driving, this Court’s decisions estab-lish that an arresting officer is not obligat-ed to obtain a warrant before conducting asearch incident to arrest simply becausethere might be adequate time in the par-ticular circumstances to obtain a warrant.The legality of a search incident to arrestmust be judged on the basis of categoricalrules. See e.g., Robinson, supra, at 235,94 S.Ct. 467. McNeely, supra, at ––––,133 S.Ct., at 1564 distinguished. Imposi-tion of a warrant requirement for everyBAC test would likely swamp courts, giventhe enormous number of drunk-driving ar-rests, with little corresponding benefit.And other alternatives—e.g., sobrietycheckpoints and ignition interlock sys-tems—are poor substitutes. Pp. 2179 –2182.

(3) Bernard argues that warrantlessBAC testing cannot be justified as asearch incident to arrest because that doc-trine aims to prevent the arrestee fromdestroying evidence, while the loss of bloodalcohol evidence results from the body’smetabolism of alcohol, a natural processnot controlled by the arrestee. In bothinstances, however, the State is justifiably


concerned that evidence may be lost. TheState’s general interest in ‘‘evidence pres-ervation’’ or avoiding ‘‘the loss of evi-dence,’’ Riley, supra, at ––––, 134 S.Ct., at2484 readily encompasses the metaboliza-tion of alcohol in the blood. Bernard’sview finds no support in Chimel v. Califor-nia, 395 U.S. 752, 763, 89 S.Ct. 2034, 23L.Ed.2d 685, Schmerber, 384 U.S., at 769,86 S.Ct. 1826 or McNeely, supra, at ––––,133 S.Ct., at 1556. Pp. 2182 – 2184.

(e) Because the impact of breath testson privacy is slight, and the need for BACtesting is great, the Fourth Amendmentpermits warrantless breath tests incidentto arrests for drunk driving. Blood tests,however, are significantly more intrusive,and their reasonableness must be judgedin light of the availability of the less inva-sive alternative of a breath test. Respon-dents have offered no satisfactory justifi-cation for demanding the more intrusivealternative without a warrant. In instanc-es where blood tests might be prefera-ble—e.g., where substances other than al-cohol impair the driver’s ability to operatea car safely, or where the subject is uncon-scious—nothing prevents the police fromseeking a warrant or from relying on theexigent circumstances exception if it ap-plies. Because breath tests are signifi-cantly less intrusive than blood tests andin most cases amply serve law enforce-ment interests, a breath test, but not ablood test, may be administered as asearch incident to a lawful arrest fordrunk driving. No warrant is needed inthis situation. Pp. 2173 – 2174.

2. Motorists may not be criminallypunished for refusing to submit to a bloodtest based on legally implied consent tosubmit to them. It is one thing to approveimplied-consent laws that impose civil pen-alties and evidentiary consequences on mo-torists who refuse to comply, but quiteanother for a State to insist upon an intru-sive blood test and then to impose criminal

penalties on refusal to submit. Theremust be a limit to the consequences towhich motorists may be deemed to haveconsented by virtue of a decision to driveon public roads. Pp. 2185 – 2186.

3. These legal conclusions resolvethe three present cases. Birchfield wascriminally prosecuted for refusing a war-rantless blood draw, and therefore thesearch that he refused cannot be justifiedas a search incident to his arrest or on thebasis of implied consent. Because thereappears to be no other basis for a warrant-less test of Birchfield’s blood, he wasthreatened with an unlawful search andunlawfully convicted for refusing thatsearch. Bernard was criminally prosecut-ed for refusing a warrantless breath test.Because that test was a permissible searchincident to his arrest for drunk driving, theFourth Amendment did not require offi-cers to obtain a warrant prior to demand-ing the test, and Bernard had no right torefuse it. Beylund submitted to a bloodtest after police told him that the lawrequired his submission. The North Da-kota Supreme Court, which based its con-clusion that Beylund’s consent was volun-tary on the erroneous assumption that theState could compel blood tests, should re-evaluate Beylund’s consent in light of thepartial inaccuracy of the officer’s advisory.Pp. 2186 – 2187.

No. 14–1468, 2015 ND 6, 858 N.W.2d302, reversed and remanded; No. 14–1470,859 N.W.2d 762, affirmed; No. 14–1507,2015 ND 18, 859 N.W.2d 403, vacated andremanded.

ALITO, J., delivered the opinion ofthe Court, in which ROBERTS, C.J., andKENNEDY, BREYER, and KAGAN, JJ.,joined. SOTOMAYOR, J., filed an opinionconcurring in part and dissenting in part,in which GINSBURG, J., joined.THOMAS, J., filed an opinion concurring


in the judgment in part and dissenting inpart.

Charles A. Rothfeld, Washington, DC,for the petitioners.

Thomas R. McCarthy, for the respon-dents in Nos. 14–1468 and 14–1507.

Kathryn Keena, for the respondent inNo. 14–1470.

Ian H. Gershengorn for the UnitedStates as amicus curiae, by special leave ofthe Court, supporting the respondents.

Dan Herbel, Herbel Law Firm, Bis-marck, ND, Eugene R. Fidell, Yale LawSchool, New Haven, CT, Charles A. Roth-feld, Andrew J. Pincus, Michael B. Kim-berly, Paul W. Hughes, Mayer BrownLLP, Washington, DC, for petitioner Dan-ny Birchfield.

Thomas R. McCarthy, William S. Conso-voy, J. Michael Connolly, Bryan K. Weir,Consovoy McCarthy Park PLLC, GeorgeMason University, School of Law Su-preme, Arlington, VA, Brian David Gro-singer, Assistant State’s Attorney, MortonCounty Courthouse, Mandan, ND, PatrickStrawbridge, Consovoy McCarthy ParkPLLC, George Mason University School,Law Boston, MA, Michael Park, ConsovoyMcCarthy Park PLLC, New York, NY, forState of North Dakota.

Jeffrey S. Sheridan, Sheridan & Dulas,P.A., Eagan, MN, Eugene R. Fidell, YaleLaw School, New Haven, CT, Charles A.Rothfeld, Andrew J. Pincus, Michael B.Kimberly, Paul W. Hughes, Mayer BrownLLP, Washington, DC, for petitioner Wil-liam Robert Bernard, Jr.

James C. Backstrom, Dakota County At-torney, Kathryn M. Keena, Assistant Da-kota County Attorney, Dakota County At-torney’s Office, Hastings, MN, for State ofMinnesota.

Thomas F. Murtha IV, Murtha Law Of-fice, Dickinson, ND, Eugene R. Fidell,Yale Law School, New Haven, CT, CharlesA. Rothfeld, Andrew J. Pincus, Michael B.Kimberly, Paul W. Hughes, Mayer BrownLLP, Washington, DC, for petitioner SteveMichael Beylund.

For U.S. Supreme Court briefs, see:

2016 WL 1459196 (Reply.Brief)

2016 WL 447640 (Pet.Brief)

2016 WL 1068982 (Resp.Brief)


2016 WL 1068983 (Resp.Brief)

2016 WL 447641 (Pet.Brief)


2016 WL 447642 (Pet.Brief)

Justice ALITO delivered the opinion ofthe Court.

Drunk drivers take a grisly toll on theNation’s roads, claiming thousands of lives,injuring many more victims, and inflictingbillions of dollars in property damage ev-ery year. To fight this problem, all Stateshave laws that prohibit motorists fromdriving with a blood alcohol concentration(BAC) that exceeds a specified level. Butdetermining whether a driver’s BAC isover the legal limit requires a test, andmany drivers stopped on suspicion ofdrunk driving would not submit to testingif given the option. So every State alsohas long had what are termed ‘‘impliedconsent laws.’’ These laws impose penal-ties on motorists who refuse to undergotesting when there is sufficient reason tobelieve they are violating the State’sdrunk-driving laws.

In the past, the typical penalty for non-compliance was suspension or revocation ofthe motorist’s license. The cases now be-fore us involve laws that go beyond thatand make it a crime for a motorist torefuse to be tested after being lawfullyarrested for driving while impaired. The


question presented is whether such lawsviolate the Fourth Amendment’s prohibi-tion against unreasonable searches.

I

The problem of drunk driving arose al-most as soon as motor vehicles came intouse. See J. Jacobs, Drunk Driving: AnAmerican Dilemma 57 (1989) (Jacobs).New Jersey enacted what was perhaps theNation’s first drunk-driving law in 1906,1906 N.J. Laws pp. 186, 196, and otherStates soon followed. These early lawsmade it illegal to drive while intoxicatedbut did not provide a statistical definitionof intoxication. As a result, prosecutorsnormally had to present testimony that thedefendant was showing outward signs ofintoxication, like imbalance or slurredspeech. R. Donigan, Chemical Tests andthe Law 2 (1966) (Donigan). As one earlycase put it, ‘‘[t]he effects resulting fromthe drinking of intoxicating liquors aremanifested in various ways, and before anyone can be shown to be under the influenceof intoxicating liquor it is necessary forsome witness to prove that some one ormore of these effects were perceptible tohim.’’ State v. Noble, 119 Ore. 674, 677,250 P. 833, 834 (1926).

The 1930’s saw a continued rise in thenumber of motor vehicles on the roads, anend to Prohibition, and not coincidentallyan increased interest in combating thegrowing problem of drunk driving. Jones,Measuring Alcohol in Blood and Breath forForensic Purposes—A Historical Review,8 For. Sci. Rev. 13, 20, 33 (1996) (Jones).The American Medical Association and theNational Safety Council set up committeesto study the problem and ultimately con-cluded that a driver with a BAC of 0.15%or higher could be presumed to be inebri-ated. Donigan 21–22. In 1939, Indianaenacted the first law that defined pre-sumptive intoxication based on BAC levels,

using the recommended 0.15% standard.1939 Ind. Acts p. 309; Jones 21. OtherStates soon followed and then, in responseto updated guidance from national organi-zations, lowered the presumption to a BAClevel of 0.10%. Donigan 22–23. Later,States moved away from mere presump-tions that defendants might rebut, andadopted laws providing that driving with a0.10% BAC or higher was per se illegal.Jacobs 69–70.

Enforcement of laws of this type obvi-ously requires the measurement of BAC.One way of doing this is to analyze asample of a driver’s blood directly. Atechnician with medical training uses asyringe to draw a blood sample from theveins of the subject, who must remain stillduring the procedure, and then the sampleis shipped to a separate laboratory formeasurement of its alcohol concentration.See 2 R. Erwin, Defense of Drunk DrivingCases §§ 17.03–17.04 (3d ed. 2015) (Er-win). Although it is possible for a subjectto be forcibly immobilized so that a samplemay be drawn, many States prohibit draw-ing blood from a driver who resists sincethis practice helps ‘‘to avoid violent con-frontations.’’ South Dakota v. Neville, 459U.S. 553, 559, 103 S.Ct. 916, 74 L.Ed.2d748 (1983).

The most common and economical meth-od of calculating BAC is by means of amachine that measures the amount of alco-hol in a person’s breath. National High-way Traffic Safety Admin. (NHTSA), E.Haire, W. Leaf, D. Preusser, & M. Solo-mon, Use of Warrants to Reduce BreathTest Refusals: Experiences from NorthCarolina 1 (No. 811461, Apr. 2011). Onesuch device, called the ‘‘Drunkometer,’’was invented and first sold in the 1930’s.Note, 30 N.C.L. Rev. 302, 303, and n. 10(1952). The test subject would inflate asmall balloon, and then the test analystwould release this captured breath into the


machine, which forced it through a chemi-cal solution that reacted to the presence ofalcohol by changing color. Id., at 303.The test analyst could observe the amountof breath required to produce the colorchange and calculate the subject’s breathalcohol concentration and by extension,BAC, from this figure. Id., at 303–304. Amore practical machine, called the‘‘Breathalyzer,’’ came into common use be-ginning in the 1950’s, relying on the samebasic scientific principles. 3 Erwin§ 22.01, at 22–3; Jones 34.

Over time, improved breath test ma-chines were developed. Today, such de-vices can detect the presence of alcoholmore quickly and accurately than before,typically using infrared technology ratherthan a chemical reaction. 2 Erwin§ 18A.01; Jones 36. And in practice allbreath testing machines used for eviden-tiary purposes must be approved by theNational Highway Traffic Safety Adminis-tration. See 1 H. Cohen & J. Green,Apprehending and Prosecuting the DrunkDriver § 7.04[7] (LexisNexis 2015). Thesemachines are generally regarded as veryreliable because the federal standards re-quire that the devices produce accurateand reproducible test results at a varietyof BAC levels, from the very low to thevery high. 77 Fed.Reg. 35747 (2012); 2Erwin § 18.07; Jones 38; see also Califor-nia v. Trombetta, 467 U.S. 479, 489, 104S.Ct. 2528, 81 L.Ed.2d 413 (1984).

Measurement of BAC based on a breathtest requires the cooperation of the personbeing tested. The subject must take adeep breath and exhale through a mouth-piece that connects to the machine. Ber-ger, How Does it Work? Alcohol BreathTesting, 325 British Medical J. 1403 (2002)(Berger). Typically the test subject must

blow air into the device ‘‘ ‘for a period ofseveral seconds’ ’’ to produce an adequatebreath sample, and the process is some-times repeated so that analysts can com-pare multiple samples to ensure the de-vice’s accuracy. Trombetta, supra, at 481,104 S.Ct. 2528; see also 2 Erwin§ 21.04[2][b](L), at 21–14 (describing theIntoxilyzer 4011 device as requiring a 12–second exhalation, although the subjectmay take a new breath about halfwaythrough).

Modern breath test machines are de-signed to capture so-called ‘‘deep lung’’ oralveolar air. Trombetta, supra, at 481, 104S.Ct. 2528. Air from the alveolar region ofthe lungs provides the best basis for deter-mining the test subject’s BAC, for it is inthat part of the lungs that alcohol vaporand other gases are exchanged betweenblood and breath. 2 Erwin § 18.01[2][a],at 18–7.

When a standard infrared device is used,the whole process takes only a few minutesfrom start to finish. Berger 1403; 2 Er-win § 18A.03[2], at 18A–14. Most eviden-tiary breath tests do not occur next to thevehicle, at the side of the road, but in apolice station, where the controlled envi-ronment is especially conducive to reliabletesting, or in some cases in the officer’spatrol vehicle or in special mobile testingfacilities. NHTSA, A. Berning et al., Re-fusal of Intoxication Testing: A Report toCongress 4, and n. 5 (No. 811098, Sept.2008).

Because the cooperation of the test sub-ject is necessary when a breath test isadministered and highly preferable when ablood sample is taken, the enactment oflaws defining intoxication based on BACmade it necessary for States to find a wayof securing such cooperation.1 So-called

1. In addition, BAC may be determined bytesting a subject’s urine, which also requires

the test subject’s cooperation. But urine testsappear to be less common in drunk-driving


‘‘implied consent’’ laws were enacted toachieve this result. They provided thatcooperation with BAC testing was a condi-tion of the privilege of driving on stateroads and that the privilege would be re-scinded if a suspected drunk driver re-fused to honor that condition. Donigan177. The first such law was enacted byNew York in 1953, and many other Statesfollowed suit not long thereafter. Id., at177–179. In 1962, the Uniform VehicleCode also included such a provision. Id.,at 179. Today, ‘‘all 50 States have adoptedimplied consent laws that require motor-ists, as a condition of operating a motorvehicle within the State, to consent to BACtesting if they are arrested or otherwisedetained on suspicion of a drunk-drivingoffense.’’ Missouri v. McNeely, 569 U.S.––––, ––––, 133 S.Ct. 1552, 1566, 185L.Ed.2d 696 (2013) (plurality opinion).Suspension or revocation of the motorist’sdriver’s license remains the standard legalconsequence of refusal. In addition, evi-dence of the motorist’s refusal is admittedas evidence of likely intoxication in adrunk-driving prosecution. See ibid.

In recent decades, the States and theFederal Government have tougheneddrunk-driving laws, and those efforts havecorresponded to a dramatic decrease inalcohol-related fatalities. As of the early1980’s, the number of annual fatalities av-eraged 25,000; by 2014, the most recentyear for which statistics are available, thenumber had fallen to below 10,000. Presi-dential Commission on Drunk Driving 1(Nov. 1983); NHTSA, Traffic SafetyFacts, 2014 Data, Alcohol–Impaired Driv-ing 2 (No. 812231, Dec. 2015) (NHTSA,2014 Alcohol–Impaired Driving). One le-gal change has been further lowering theBAC standard from 0.10% to 0.08%. See 1Erwin, § 2.01[1], at 2–3 to 2–4. In addi-tion, many States now impose increased

penalties for recidivists and for driverswith a BAC level that exceeds a higherthreshold. In North Dakota, for example,the standard penalty for first-time drunk-driving offenders is license suspension anda fine. N.D. Cent.Code Ann. § 39–08–01(5)(a)(1) (Supp.2015); § 39–20–04.1(1).But an offender with a BAC of 0.16% orhigher must spend at least two days in jail.§ 39–08–01(5)(a)(2). In addition, the Stateimposes increased mandatory minimumsentences for drunk-driving recidivists.§§ 39–08–01(5)(b)–(d).

Many other States have taken a similarapproach, but this new structure threat-ened to undermine the effectiveness of im-plied consent laws. If the penalty fordriving with a greatly elevated BAC or forrepeat violations exceeds the penalty forrefusing to submit to testing, motoristswho fear conviction for the more severelypunished offenses have an incentive to re-ject testing. And in some States, the re-fusal rate is high. On average, over one-fifth of all drivers asked to submit to BACtesting in 2011 refused to do so. NHTSA,E. Namuswe, H. Coleman, & A. Berning,Breath Test Refusal Rates in the UnitedStates—2011 Update 1 (No. 811881, Mar.2014). In North Dakota, the refusal ratefor 2011 was a representative 21%. Id., at2. Minnesota’s was below average, at 12%.Ibid.

To combat the problem of test refusal,some States have begun to enact lawsmaking it a crime to refuse to undergotesting. Minnesota has taken this ap-proach for decades. See 1989 Minn. Lawsp. 1658; 1992 Minn. Laws p. 1947. Andthat may partly explain why its refusalrate now is below the national average.Minnesota’s rate is also half the 24% ratereported for 1988, the year before its firstcriminal refusal law took effect. See Ross,

cases than breath and blood tests, and none of the cases before us involves one.


Simon, Cleary, Lewis, & Storkamp, Causesand Consequences of Implied Consent Re-fusal, 11 Alcohol, Drugs and Driving 57, 69(1995). North Dakota adopted a similarlaw, in 2013, after a pair of drunk-drivingaccidents claimed the lives of an entireyoung family and another family’s 5– and9–year–old boys.2 2013 N.D. Laws pp.1087–1088 (codified at §§ 39–08–01(1)–(3)).The Federal Government also encouragesthis approach as a means for overcomingthe incentive that drunk drivers have torefuse a test. NHTSA, Refusal of Intoxi-cation Testing, at 20.

II

A

Petitioner Danny Birchfield accidentallydrove his car off a North Dakota highwayon October 10, 2013. A state trooper ar-rived and watched as Birchfield unsuccess-fully tried to drive back out of the ditch inwhich his car was stuck. The trooperapproached, caught a strong whiff of alco-hol, and saw that Birchfield’s eyes werebloodshot and watery. Birchfield spoke inslurred speech and struggled to staysteady on his feet. At the trooper’s re-quest, Birchfield agreed to take severalfield sobriety tests and performed poorlyon each. He had trouble reciting sectionsof the alphabet and counting backwards incompliance with the trooper’s directions.

Believing that Birchfield was intoxicat-ed, the trooper informed him of his obli-gation under state law to agree to a BACtest. Birchfield consented to a roadsidebreath test. The device used for this sortof test often differs from the machinesused for breath tests administered in apolice station and is intended to provide apreliminary assessment of the driver’s

BAC. See, e.g., Berger 1403. Because thereliability of these preliminary or screen-ing breath tests varies, many jurisdictionsdo not permit their numerical results to beadmitted in a drunk-driving trial as evi-dence of a driver’s BAC. See generally 3Erwin § 24.03[1]. In North Dakota, resultsfrom this type of test are ‘‘used only fordetermining whether or not a further testshall be given.’’ N.D. Cent.Code Ann.§ 39–20–14(3). In Birchfield’s case, thescreening test estimated that his BAC was0.254%, more than three times the legallimit of 0.08%. See § 39–08–01(1)(a).

The state trooper arrested Birchfield fordriving while impaired, gave the usual Mi-randa warnings, again advised him of hisobligation under North Dakota law to un-dergo BAC testing, and informed him, asstate law requires, see § 39–20–01(3)(a),that refusing to take the test would exposehim to criminal penalties. In addition tomandatory addiction treatment, sentencesrange from a mandatory fine of $500 (forfirst-time offenders) to fines of at least$2,000 and imprisonment of at least oneyear and one day (for serial offenders).§ 39–08–01(5). These criminal penaltiesapply to blood, breath, and urine test re-fusals alike. See §§ 39–08–01(2), 39–20–01, 39–20–14.

Although faced with the prospect ofprosecution under this law, Birchfield re-fused to let his blood be drawn. Justthree months before, Birchfield had re-ceived a citation for driving under theinfluence, and he ultimately pleaded guiltyto that offense. State v. Birchfield, Crim.No. 30–2013–CR–00720 (Dist. Ct. MortonCty., N.D., Jan. 27, 2014). This time healso pleaded guilty—to a misdemeanor vio-

2. See Smith, Moving From Grief to Action:Two Families Push for Stronger DUI Laws inN.D., Bismarck Tribune, Feb. 2, 2013, p. 1A;Haga, Some Kind of Peace: Parents of Two

Young Boys Killed in Campground AccidentUrge for Tougher DUI Penalties in N.D.,Grand Forks Herald, Jan. 15, 2013, pp. A1–A2.


lation of the refusal statute—but his pleawas a conditional one: while Birchfieldadmitted refusing the blood test, he ar-gued that the Fourth Amendment prohib-ited criminalizing his refusal to submit tothe test. The State District Court reject-ed this argument and imposed a sentencethat accounted for his prior conviction.Cf. § 39–08–01(5)(b). The sentence in-cluded 30 days in jail (20 of which weresuspended and 10 of which had alreadybeen served), 1 year of unsupervised pro-bation, $1,750 in fine and fees, and manda-tory participation in a sobriety programand in a substance abuse evaluation. App.to Pet. for Cert. in No. 14–1468, p. 20a.

On appeal, the North Dakota SupremeCourt affirmed. 2015 ND 6, 858 N.W.2d302. The court found support for the testrefusal statute in this Court’s McNeelyplurality opinion, which had spoken favor-ably about ‘‘acceptable ‘legal tools’ with‘significant consequences’ for refusing tosubmit to testing.’’ 858 N.W.2d, at 307(quoting McNeely, 569 U.S., at ––––, 133S.Ct., at 1566).

B

On August 5, 2012, Minnesota police re-ceived a report of a problem at a South St.Paul boat launch. Three apparently intox-icated men had gotten their truck stuck inthe river while attempting to pull theirboat out of the water. When police ar-rived, witnesses informed them that a manin underwear had been driving the truck.That man proved to be William RobertBernard, Jr., petitioner in the second ofthese cases. Bernard admitted that hehad been drinking but denied driving thetruck (though he was holding its keys) andrefused to perform any field sobriety tests.After noting that Bernard’s breath smelledof alcohol and that his eyes were bloodshotand watery, officers arrested Bernard fordriving while impaired.

Back at the police station, officers readBernard Minnesota’s implied consent advi-sory, which like North Dakota’s informsmotorists that it is a crime under statelaw to refuse to submit to a legally re-quired BAC test. See Minn.Stat.§ 169A.51, subd. 2 (2014). Aside fromnoncriminal penalties like license revoca-tion, § 169A.52, subd. 3, test refusal inMinnesota can result in criminal penaltiesranging from no more than 90 days’ im-prisonment and up to a $1,000 fine for amisdemeanor violation to seven years’ im-prisonment and a $14,000 fine for repeatoffenders, § 169A.03, subd. 12; § 169A.20,subds. 2–3; § 169A.24, subd. 2;§ 169A.27, subd. 2.

The officers asked Bernard to take abreath test. After he refused, prosecutorscharged him with test refusal in the firstdegree because he had four prior im-paired-driving convictions. 859 N.W.2d762, 765, n. 1 (Minn.2015) (case below).First-degree refusal carries the highestmaximum penalties and a mandatory mini-mum 3–year prison sentence. § 169A.276,subd. 1.

The Minnesota District Court dismissedthe charges on the ground that the war-rantless breath test demanded of Bernardwas not permitted under the FourthAmendment. App. to Pet. for Cert. in No.14–1470, pp. 48a, 59a. The MinnesotaCourt of Appeals reversed, id., at 46a, andthe State Supreme Court affirmed thatjudgment. Based on the longstanding doc-trine that authorizes warrantless searchesincident to a lawful arrest, the high courtconcluded that police did not need a war-rant to insist on a test of Bernard’s breath.859 N.W.2d, at 766–772. Two justices dis-sented. Id., at 774–780 (opinion of Pageand Stras, JJ.).

C

A police officer spotted our third peti-tioner, Steve Michael Beylund, driving the


streets of Bowman, North Dakota, on thenight of August 10, 2013. The officer sawBeylund try unsuccessfully to turn into adriveway. In the process, Beylund’s carnearly hit a stop sign before coming to astop still partly on the public road. Theofficer walked up to the car and saw thatBeylund had an empty wine glass in thecenter console next to him. Noticing thatBeylund also smelled of alcohol, the officerasked him to step out of the car. AsBeylund did so, he struggled to keep hisbalance.

The officer arrested Beylund for drivingwhile impaired and took him to a nearbyhospital. There he read Beylund NorthDakota’s implied consent advisory, inform-ing him that test refusal in these circum-stances is itself a crime. See N.D. Cent.Code Ann. § 39–20–01(3)(a). Unlike theother two petitioners in these cases, Bey-lund agreed to have his blood drawn andanalyzed. A nurse took a blood sample,which revealed a blood alcohol concentra-tion of 0.250%, more than three times thelegal limit.

Given the test results, Beylund’s driver’slicense was suspended for two years afteran administrative hearing. Beylund ap-pealed the hearing officer’s decision to aNorth Dakota District Court, principallyarguing that his consent to the blood testwas coerced by the officer’s warning thatrefusing to consent would itself be a crime.The District Court rejected this argument,and Beylund again appealed.

The North Dakota Supreme Court af-firmed. In response to Beylund’s argu-ment that his consent was insufficientlyvoluntary because of the announced crimi-nal penalties for refusal, the court reliedon the fact that its then-recent Birchfielddecision had upheld the constitutionality ofthose penalties. 2015 ND 18, ¶¶ 14–15,859 N.W.2d 403, 408–409. The court alsoexplained that it had found consent offered

by a similarly situated motorist to be vol-untary, State v. Smith, 2014 ND 152, 849N.W.2d 599. In that case, the court em-phasized that North Dakota’s implied con-sent advisory was not misleading becauseit truthfully related the penalties for refus-al. Id., at 606.

We granted certiorari in all three casesand consolidated them for argument, see577 U.S. ––––, 136 S.Ct. 614, 193 L.Ed.2d494 (2015), in order to decide whethermotorists lawfully arrested for drunk driv-ing may be convicted of a crime or other-wise penalized for refusing to take a war-rantless test measuring the alcohol in theirbloodstream.

III

As our summary of the facts and pro-ceedings in these three cases reveals, thecases differ in some respects. PetitionersBirchfield and Beylund were told that theywere obligated to submit to a blood test,whereas petitioner Bernard was informedthat a breath test was required. Birch-field and Bernard each refused to undergoa test and was convicted of a crime for hisrefusal. Beylund complied with the de-mand for a blood sample, and his licensewas then suspended in an administrativeproceeding based on test results that re-vealed a very high blood alcohol level.

Despite these differences, success for allthree petitioners depends on the proposi-tion that the criminal law ordinarily maynot compel a motorist to submit to thetaking of a blood sample or to a breathtest unless a warrant authorizing suchtesting is issued by a magistrate. If, onthe other hand, such warrantless searchescomport with the Fourth Amendment, itfollows that a State may criminalize therefusal to comply with a demand to submitto the required testing, just as a State maymake it a crime for a person to obstructthe execution of a valid search warrant.


See, e.g., Conn. Gen.Stat. § 54–33d (2009);Fla. Stat. § 933.15 (2015); N.J. Stat. Ann.§ 33:1–63 (West 1994); 18 U.S.C. § 1501;cf. Bumper v. North Carolina, 391 U.S.543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797(1968) (‘‘When a law enforcement officerclaims authority to search a home under awarrant, he announces in effect that theoccupant has no right to resist thesearch’’). And by the same token, if suchwarrantless searches are constitutional,there is no obstacle under federal law tothe admission of the results that they yieldin either a criminal prosecution or a civilor administrative proceeding. We there-fore begin by considering whether thesearches demanded in these cases wereconsistent with the Fourth Amendment.

IV

The Fourth Amendment provides:‘‘The right of the people to be secure

in their persons, houses, papers, andeffects, against unreasonable searchesand seizures, shall not be violated, andno Warrants shall issue, but upon proba-ble cause, supported by Oath or affirma-tion, and particularly describing theplace to be searched, and the persons orthings to be seized.’’

[1] The Amendment thus prohibits‘‘unreasonable searches,’’ and our cases es-tablish that the taking of a blood sample orthe administration of a breath test is asearch. See Skinner v. Railway LaborExecutives’ Assn., 489 U.S. 602, 616–617,109 S.Ct. 1402, 103 L.Ed.2d 639 (1989);Schmerber v. California, 384 U.S. 757,767–768, 86 S.Ct. 1826, 16 L.Ed.2d 908(1966). The question, then, is whether thewarrantless searches at issue here werereasonable. See Vernonia School Dist.47J v. Acton, 515 U.S. 646, 652, 115 S.Ct.2386, 132 L.Ed.2d 564 (1995) (‘‘As the textof the Fourth Amendment indicates, theultimate measure of the constitutionality of

a governmental search is ‘reasonable-ness’ ’’).

[2] ‘‘[T]he text of the Fourth Amend-ment does not specify when a search war-rant must be obtained.’’ Kentucky v.King, 563 U.S. 452, 459, 131 S.Ct. 1849,179 L.Ed.2d 865 (2011); see also Califor-nia v. Acevedo, 500 U.S. 565, 581, 111 S.Ct.1982, 114 L.Ed.2d 619 (1991) (Scalia, J.,concurring in judgment) (‘‘What [the text]explicitly states regarding warrants is byway of limitation upon their issuance rath-er than requirement of their use’’). But‘‘this Court has inferred that a warrantmust [usually] be secured.’’ King, 563U.S., at 459, 131 S.Ct. 1849. This usualrequirement, however, is subject to a num-ber of exceptions. Ibid.

[3, 4] We have previously had occasionto examine whether one such exception—for ‘‘exigent circumstances’’—applies indrunk-driving investigations. The exigentcircumstances exception allows a warrant-less search when an emergency leaves po-lice insufficient time to seek a warrant.Michigan v. Tyler, 436 U.S. 499, 509, 98S.Ct. 1942, 56 L.Ed.2d 486 (1978). It per-mits, for instance, the warrantless entry ofprivate property when there is a need toprovide urgent aid to those inside, whenpolice are in hot pursuit of a fleeing sus-pect, and when police fear the imminentdestruction of evidence. King, supra, at460, 131 S.Ct. 1849.

In Schmerber v. California, we held thatdrunk driving may present such an exi-gency. There, an officer directed hospitalpersonnel to take a blood sample from adriver who was receiving treatment for carcrash injuries. 384 U.S., at 758, 86 S.Ct.1826. The Court concluded that the offi-cer ‘‘might reasonably have believed thathe was confronted with an emergency’’that left no time to seek a warrant because‘‘the percentage of alcohol in the blood


begins to diminish shortly after drinkingstops.’’ Id., at 770, 86 S.Ct. 1826. On thespecific facts of that case, where time hadalready been lost taking the driver to thehospital and investigating the accident, theCourt found no Fourth Amendment viola-tion even though the warrantless blooddraw took place over the driver’s objection.Id., at 770–772, 86 S.Ct. 1826.

More recently, though, we have heldthat the natural dissipation of alcohol fromthe bloodstream does not always consti-tute an exigency justifying the warrantlesstaking of a blood sample. That was theholding of Missouri v. McNeely, 569 U.S.––––, 133 S.Ct. 1552, 185 L.Ed.2d 696where the State of Missouri was seeking aper se rule that ‘‘whenever an officer hasprobable cause to believe an individual hasbeen driving under the influence of alcohol,exigent circumstances will necessarily ex-ist because BAC evidence is inherentlyevanescent.’’ Id., at ––––, 133 S.Ct., at1560 (opinion of the Court). We disa-greed, emphasizing that Schmerber hadadopted a case-specific analysis dependingon ‘‘all of the facts and circumstances ofthe particular case.’’ 569 U.S., at ––––,133 S.Ct., at 1560. We refused to ‘‘departfrom careful case-by-case assessment ofexigency and adopt the categorical ruleproposed by the State.’’ Id., at ––––, 133S.Ct., at 1561.

[5] While emphasizing that the exi-gent-circumstances exception must be ap-plied on a case-by-case basis, the McNeelyCourt noted that other exceptions to thewarrant requirement ‘‘apply categorically’’rather than in a ‘‘case-specific’’ fashion.Id., at ––––, n. 3, 133 S.Ct., at 1559, n. 3.One of these, as the McNeely opinion rec-ognized, is the long-established rule that awarrantless search may be conducted inci-dent to a lawful arrest. See ibid. But theCourt pointedly did not address any poten-tial justification for warrantless testing of

drunk-driving suspects except for the ex-ception ‘‘at issue in th[e] case,’’ namely, theexception for exigent circumstances. Id.,at ––––, 133 S.Ct., at 1558. Neither didany of the Justices who wrote separately.See id., at –––– – ––––, 133 S.Ct., at 1568–1569 (KENNEDY, J., concurring in part);id., at –––– – ––––, 133 S.Ct., at 1569–1574(ROBERTS, C.J., concurring in part anddissenting in part); id., at –––– – ––––, 133S.Ct., at 1574–1578 (THOMAS, J., dissent-ing).

In the three cases now before us, thedrivers were searched or told that theywere required to submit to a search afterbeing placed under arrest for drunk driv-ing. We therefore consider how thesearch-incident-to-arrest doctrine appliesto breath and blood tests incident to sucharrests.

V

A

The search-incident-to-arrest doctrinehas an ancient pedigree. Well before theNation’s founding, it was recognized thatofficers carrying out a lawful arrest hadthe authority to make a warrantless searchof the arrestee’s person. An 18th-centurymanual for justices of the peace provides arepresentative picture of usual practiceshortly before the Fourth Amendment’sadoption:

‘‘[A] thorough search of the felon is ofthe utmost consequence to your ownsafety, and the benefit of the public, asby this means he will be deprived ofinstruments of mischief, and evidencemay probably be found on him sufficientto convict him, of which, if he has eithertime or opportunity allowed him, he willbesure [sic] to find some means to getrid of.’’ The Conductor Generalis 117(J. Parker ed. 1788) (reprinting S.


Welch, Observations on the Office ofConstable 19 (1754)).

One Fourth Amendment historian hasobserved that, prior to American indepen-dence, ‘‘[a]nyone arrested could expectthat not only his surface clothing but hisbody, luggage, and saddlebags would besearched and, perhaps, his shoes, socks,and mouth as well.’’ W. Cuddihy, TheFourth Amendment: Origins and OriginalMeaning: 602–1791, p. 420 (2009).

No historical evidence suggests that theFourth Amendment altered the permissi-ble bounds of arrestee searches. On thecontrary, legal scholars agree that ‘‘thelegitimacy of body searches as an adjunctto the arrest process had been thoroughlyestablished in colonial times, so much sothat their constitutionality in 1789 can notbe doubted.’’ Id., at 752; see also T.Taylor, Two Studies in Constitutional In-terpretation 28–29, 39, 45 (1969); Stuntz,The Substantive Origins of Criminal Pro-cedure, 105 Yale L.J. 393, 401 (1995).

Few reported cases addressed the legal-ity of such searches before the 19th centu-ry, apparently because the point was notmuch contested. In the 19th century, thesubject came up for discussion more often,but court decisions and treatises alike con-firmed the searches’ broad acceptance.E.g., Holker v. Hennessey, 141 Mo. 527,539–540, 42 S.W. 1090, 1093 (1897); Exparte Hurn, 92 Ala. 102, 112, 9 So. 515, 519(1891); Thatcher v. Weeks, 79 Me. 547,548–549, 11 A. 599 (1887); Reifsnyder v.Lee, 44 Iowa 101, 103 (1876); F. Wharton,Criminal Pleading and Practice § 60, p. 45(8th ed. 1880); 1 J. Bishop, Criminal Pro-cedure § 211, p. 127 (2d ed. 1872).

When this Court first addressed thequestion, we too confirmed (albeit in dicta)‘‘the right on the part of the Government,always recognized under English andAmerican law, to search the person of theaccused when legally arrested to discover

and seize the fruits or evidence of crime.’’Weeks v. United States, 232 U.S. 383, 392,34 S.Ct. 341, 58 L.Ed. 652 (1914). Theexception quickly became a fixture in ourFourth Amendment case law. But in thedecades that followed, we grappled re-peatedly with the question of the authorityof arresting officers to search the areasurrounding the arrestee, and our deci-sions reached results that were not easy toreconcile. See, e.g., United States v. Lef-kowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76L.Ed. 877 (1932) (forbidding ‘‘unre-strained’’ search of room where arrest wasmade); Harris v. United States, 331 U.S.145, 149, 152, 67 S.Ct. 1098, 91 L.Ed. 1399(1947) (permitting complete search of ar-restee’s four-room apartment); UnitedStates v. Rabinowitz, 339 U.S. 56, 60–65,70 S.Ct. 430, 94 L.Ed. 653 (1950) (permit-ting complete search of arrestee’s office).

We attempted to clarify the law regard-ing searches incident to arrest in Chimel v.California, 395 U.S. 752, 754, 89 S.Ct.2034, 23 L.Ed.2d 685 (1969), a case inwhich officers had searched the arrestee’sentire three-bedroom house. Chimel en-dorsed a general rule that arresting offi-cers, in order to prevent the arrestee fromobtaining a weapon or destroying evidence,could search both ‘‘the person arrested’’and ‘‘the area ‘within his immediate con-trol.’ ’’ Id., at 763, 89 S.Ct. 2034. ‘‘[N]ocomparable justification,’’ we said, sup-ported ‘‘routinely searching any room oth-er than that in which an arrest occurs—or,for that matter, for searching through allthe desk drawers or other closed or con-cealed areas in that room itself.’’ Ibid.

Four years later, in United States v.Robinson, 414 U.S. 218, 94 S.Ct. 467, 38L.Ed.2d 427 (1973), we elaborated on Chi-mel ’s meaning. We noted that thesearch-incident-to-arrest rule actually com-prises ‘‘two distinct propositions’’: ‘‘Thefirst is that a search may be made of the


person of the arrestee by virtue of thelawful arrest. The second is that a searchmay be made of the area within the controlof the arrestee.’’ 414 U.S., at 224, 94 S.Ct.467. After a thorough review of the rele-vant common law history, we repudiated‘‘case-by-case adjudication’’ of the questionwhether an arresting officer had the au-thority to carry out a search of the arres-tee’s person. Id., at 235, 94 S.Ct. 467.The permissibility of such searches, weheld, does not depend on whether a searchof a particular arrestee is likely to protectofficer safety or evidence: ‘‘The authorityto search the person incident to a lawfulcustodial arrest, while based upon the needto disarm and to discover evidence, doesnot depend on what a court may laterdecide was the probability in a particulararrest situation that weapons or evidencewould in fact be found upon the person ofthe suspect.’’ Ibid. Instead, the mere ‘‘factof the lawful arrest’’ justifies ‘‘a full searchof the person.’’ Ibid. In Robinson itself,that meant that police had acted permissi-bly in searching inside a package of ciga-rettes found on the man they arrested.Id., at 236, 94 S.Ct. 467.

[6] Our decision two Terms ago in Ri-ley v. California, 573 U.S. ––––, 134 S.Ct.2473, 189 L.Ed.2d 430 (2014), reaffirmed‘‘Robinson ’s categorical rule’’ and ex-plained how the rule should be applied insituations that could not have been envi-sioned when the Fourth Amendment wasadopted. Id., at ––––, 134 S.Ct., at 2484.Riley concerned a search of data con-tained in the memory of a modern cellphone. ‘‘Absent more precise guidancefrom the founding era,’’ the Court wrote,‘‘we generally determine whether to ex-

empt a given type of search from thewarrant requirement ‘by assessing, on theone hand, the degree to which it intrudesupon an individual’s privacy and, on theother, the degree to which it is needed forthe promotion of legitimate governmentalinterests.’ ’’ Ibid.

[7] Blood and breath tests to measureblood alcohol concentration are not as newas searches of cell phones, but here, as inRiley, the founding era does not provideany definitive guidance as to whether theyshould be allowed incident to arrest.3

Lacking such guidance, we engage in thesame mode of analysis as in Riley : weexamine ‘‘the degree to which [they] in-trud[e] upon an individual’s privacy andTTT the degree to which [they are] neededfor the promotion of legitimate govern-mental interests.’ ’’ Ibid.

B

We begin by considering the impact ofbreath and blood tests on individual priva-cy interests, and we will discuss each typeof test in turn.

1

Years ago we said that breath tests donot ‘‘implicat[e] significant privacy con-cerns.’’ Skinner, 489 U.S., at 626, 109S.Ct. 1402. That remains so today.

First, the physical intrusion is almostnegligible. Breath tests ‘‘do not requirepiercing the skin’’ and entail ‘‘a minimumof inconvenience.’’ Id., at 625, 109 S.Ct.1402. As Minnesota describes its versionof the breath test, the process requires thearrestee to blow continuously for 4 to 15seconds into a straw-like mouthpiece thatis connected by a tube to the test machine.

3. At most, there may be evidence that anarrestee’s mouth could be searched in appro-priate circumstances at the time of the found-ing. See W. Cuddihy, Fourth Amendment:Origins and Original Meaning: 602–1791, p.

420 (2009). Still, searching a mouth forweapons or contraband is not the same asrequiring an arrestee to give up breath orblood.


Brief for Respondent in No. 14–1470, p. 20.Independent sources describe other breathtest devices in essentially the same terms.See supra, at 2168. The effort is no moredemanding than blowing up a party bal-loon.

Petitioner Bernard argues, however,that the process is nevertheless a signifi-cant intrusion because the arrestee mustinsert the mouthpiece of the machine intohis or her mouth. Reply Brief in No. 14–1470, p. 9. But there is nothing painful orstrange about this requirement. The useof a straw to drink beverages is a commonpractice and one to which few object.

Nor, contrary to Bernard, is the test asignificant intrusion because it ‘‘does notcapture an ordinary exhalation of the kindthat routinely is exposed to the public’’ butinstead ‘‘ ‘requires a sample of ‘‘alveolar’’(deep lung) air.’ ’’ Brief for Petitioner inNo. 14–1470, p. 24. Humans have neverbeen known to assert a possessory interestin or any emotional attachment to any ofthe air in their lungs. The air that hu-mans exhale is not part of their bodies.Exhalation is a natural process—indeed,one that is necessary for life. Humanscannot hold their breath for more than afew minutes, and all the air that isbreathed into a breath analyzing machine,including deep lung air, sooner or laterwould be exhaled even without the test.See generally J. Hall, Guyton and HallTextbook of Medical Physiology 519–520(13th ed. 2016).

In prior cases, we have upheld warrant-less searches involving physical intrusionsthat were at least as significant as thatentailed in the administration of a breathtest. Just recently we described the pro-cess of collecting a DNA sample by rub-bing a swab on the inside of a person’scheek as a ‘‘negligible’’ intrusion. Mary-land v. King, 569 U.S. ––––, ––––, 133S.Ct. 1958, 1969, 186 L.Ed.2d 1 (2013).

We have also upheld scraping underneatha suspect’s fingernails to find evidence of acrime, calling that a ‘‘very limited intru-sion.’’ Cupp v. Murphy, 412 U.S. 291, 296,93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). Abreath test is no more intrusive than ei-ther of these procedures.

Second, breath tests are capable of re-vealing only one bit of information, theamount of alcohol in the subject’s breath.In this respect, they contrast sharply withthe sample of cells collected by the swabin Maryland v. King. Although the DNAobtained under the law at issue in thatcase could lawfully be used only for identi-fication purposes, 569 U.S., at ––––, 133S.Ct., at 1967–1968, the process put intothe possession of law enforcement authori-ties a sample from which a wealth of addi-tional, highly personal information couldpotentially be obtained. A breath test, bycontrast, results in a BAC reading on amachine, nothing more. No sample ofanything is left in the possession of thepolice.

[8] Finally, participation in a breathtest is not an experience that is likely tocause any great enhancement in the em-barrassment that is inherent in any arrest.See Skinner, supra, at 625, 109 S.Ct. 1402(breath test involves ‘‘a minimum of TTT

embarrassment’’). The act of blowing intoa straw is not inherently embarrassing,nor are evidentiary breath tests adminis-tered in a manner that causes embarrass-ment. Again, such tests are normally ad-ministered in private at a police station, ina patrol car, or in a mobile testing facility,out of public view. See supra, at 2168.Moreover, once placed under arrest, theindividual’s expectation of privacy is neces-sarily diminished. Maryland v. King, su-pra, at –––– – ––––, 133 S.Ct., at 1977–1979.


[9] For all these reasons, we reiteratewhat we said in Skinner : A breath testdoes not ‘‘implicat[e] significant privacyconcerns.’’ 489 U.S., at 626, 109 S.Ct.1402.

2

Blood tests are a different matter.They ‘‘require piercing the skin’’ and ex-tract a part of the subject’s body. Skin-ner, supra, at 625, 109 S.Ct. 1402; see alsoMcNeely, 569 U.S., at ––––, 133 S.Ct., at1558 (opinion of the Court) (blood drawsare ‘‘a compelled physical intrusion be-neath [the defendant’s] skin and into hisveins’’); id., at ––––, 133 S.Ct. at 1573(opinion of ROBERTS, C.J.) (blood drawsare ‘‘significant bodily intrusions’’). Andwhile humans exhale air from their lungsmany times per minute, humans do notcontinually shed blood. It is true, ofcourse, that people voluntarily submit tothe taking of blood samples as part of aphysical examination, and the process in-volves little pain or risk. See id., at ––––,133 S.Ct., at 1563–1564 (plurality opinion)(citing Schmerber, 384 U.S., at 771, 86S.Ct. 1826). Nevertheless, for many, theprocess is not one they relish. It is signifi-cantly more intrusive than blowing into atube. Perhaps that is why many States’implied consent laws, including Minneso-ta’s, specifically prescribe that breath testsbe administered in the usual drunk-drivingcase instead of blood tests or give motor-ists a measure of choice over which test totake. See 1 Erwin § 4.06; Minn.Stat.§ 169A.51, subd. 3.

In addition, a blood test, unlike a breathtest, places in the hands of law enforce-ment authorities a sample that can be pre-served and from which it is possible toextract information beyond a simple BACreading. Even if the law enforcementagency is precluded from testing the bloodfor any purpose other than to measure

BAC, the potential remains and may resultin anxiety for the person tested.

C

Having assessed the impact of breathand blood testing on privacy interests, wenow look to the States’ asserted need toobtain BAC readings for persons arrestedfor drunk driving.

1

The States and the Federal Governmenthave a ‘‘paramount interest TTT in preserv-ing the safety of TTT public highways.’’Mackey v. Montrym, 443 U.S. 1, 17, 99S.Ct. 2612, 61 L.Ed.2d 321 (1979). Al-though the number of deaths and injuriescaused by motor vehicle accidents has de-clined over the years, the statistics are stillstaggering. See, e.g., NHTSA, TrafficSafety Facts 1995—Overview 2 (No. 95F7,1995) (47,087 fatalities, 3,416,000 injuries in1988); NHTSA, Traffic Safety Facts, 2014Data, Summary of Motor Vehicle Crashes1 (No. 812263, May 2016) (Table 1) (29,989fatalities, 1,648,000 injuries in 2014).

Alcohol consumption is a leading causeof traffic fatalities and injuries. Duringthe past decade, annual fatalities in drunk-driving accidents ranged from 13,582deaths in 2005 to 9,865 deaths in 2011.NHTSA, 2014 Alcohol–Impaired Driving 2.The most recent data report a total of9,967 such fatalities in 2014—on average,one death every 53 minutes. Id., at 1. Ourcases have long recognized the ‘‘carnage’’and ‘‘slaughter’’ caused by drunk drivers.Neville, 459 U.S., at 558, 103 S.Ct. 916;Breithaupt v. Abram, 352 U.S. 432, 439, 77S.Ct. 408, 1 L.Ed.2d 448 (1957).

Justice SOTOMAYOR’s partial dissentsuggests that States’ interests in fightingdrunk driving are satisfied once suspecteddrunk drivers are arrested, since such ar-rests take intoxicated drivers off the roadswhere they might do harm. See post, at


2191 (opinion concurring in part and dis-senting in part). But of course States arenot solely concerned with neutralizing thethreat posed by a drunk driver who hasalready gotten behind the wheel. Theyalso have a compelling interest in creatingeffective ‘‘deterrent[s] to drunken driving’’so such individuals make responsible deci-sions and do not become a threat to othersin the first place. Mackey, supra, at 18,99 S.Ct. 2612.

To deter potential drunk drivers andthereby reduce alcohol-related injuries, theStates and the Federal Government havetaken the series of steps that we recountedearlier. See supra, at 2166 – 2170. Webriefly recapitulate. After pegging inebri-ation to a specific level of blood alcohol,States passed implied consent laws to in-duce motorists to submit to BAC testing.While these laws originally provided thatrefusal to submit could result in the loss ofthe privilege of driving and the use ofevidence of refusal in a drunk-drivingprosecution, more recently States and theFederal Government have concluded thatthese consequences are insufficient. Inparticular, license suspension alone is un-likely to persuade the most dangerous of-fenders, such as those who drive with aBAC significantly above the current limitof 0.08% and recidivists, to agree to a testthat would lead to severe criminal sanc-tions. NHTSA, Implied Consent RefusalImpact, pp. xvii, 83 (No. 807765, Sept.1991); NHTSA, Use of Warrants forBreath Test Refusal 1 (No. 810852, Oct.2007). The laws at issue in the presentcases—which make it a crime to refuse tosubmit to a BAC test—are designed toprovide an incentive to cooperate in suchcases, and we conclude that they serve avery important function.

2

Petitioners and Justice SOTOMAYORcontend that the States and the Federal

Government could combat drunk driving inother ways that do not have the sameimpact on personal privacy. Their argu-ments are unconvincing.

The chief argument on this score is thatan officer making an arrest for drunk driv-ing should not be allowed to administer aBAC test unless the officer procures asearch warrant or could not do so in timeto obtain usable test results. The govern-mental interest in warrantless breath test-ing, Justice SOTOMAYOR claims, turnson ‘‘ ‘whether the burden of obtaining awarrant is likely to frustrate the govern-mental purpose behind the search.’ ’’ Post,at 2188 (quoting Camara v. MunicipalCourt of City and County of San Francis-co, 387 U.S. 523, 533, 87 S.Ct. 1727, 18L.Ed.2d 930 (1967)).

This argument contravenes our deci-sions holding that the legality of a searchincident to arrest must be judged on thebasis of categorical rules. In Robinson,for example, no one claimed that the objectof the search, a package of cigarettes, pre-sented any danger to the arresting officeror was at risk of being destroyed in thetime that it would have taken to secure asearch warrant. The Court neverthelessupheld the constitutionality of a warrant-less search of the package, concluding thata categorical rule was needed to give policeadequate guidance: ‘‘A police officer’s de-termination as to how and where to searchthe person of a suspect whom he has ar-rested is necessarily a quick ad hoc judg-ment which the Fourth Amendment doesnot require to be broken down in eachinstance into an analysis of each step inthe search.’’ 414 U.S., at 235, 94 S.Ct. 467;cf. Riley, 573 U.S., at ––––, 134 S.Ct., at2491–2492 (‘‘If police are to have workablerules, the balancing of the competing inter-ests must in large part be done on acategorical basis—not in an ad hoc, case-


by-case fashion by individual police offi-cers’’ (brackets, ellipsis, and internal quo-tation marks omitted)).

It is not surprising, then, that the lan-guage Justice SOTOMAYOR quotes tojustify her approach comes not from oursearch-incident-to-arrest case law, but acase that addressed routine home searchesfor possible housing code violations. SeeCamara, 387 U.S., at 526, 87 S.Ct. 1727.Camara ’s express concern in the passagethat the dissent quotes was ‘‘whether thepublic interest demands creation of a gen-eral exception to the Fourth Amendment’swarrant requirement.’’ Id., at 533, 87S.Ct. 1727 (emphasis added). Camara didnot explain how to apply an existing excep-tion, let alone the long-established excep-tion for searches incident to a lawful ar-rest, whose applicability, as Robinson andRiley make plain, has never turned oncase-specific variables such as how quicklythe officer will be able to obtain a warrantin the particular circumstances he faces.

In advocating the case-by-case approach,petitioners and Justice SOTOMAYOR citelanguage in our McNeely opinion. SeeBrief for Petitioner in No. 14–1468, p. 14;post, at 2192 – 2193. But McNeely con-cerned an exception to the warrant re-quirement—for exigent circumstances—that always requires case-by-case determi-nations. That was the basis for our deci-sion in that case. 569 U.S., at ––––, 133S.Ct., at 1560–1561. Although Justice SO-TOMAYOR contends that the categoricalsearch-incident-to-arrest doctrine andcase-by-case exigent circumstances doc-trine are actually parts of a single frame-work, post, at 2190 – 2191, and n. 3, inMcNeely the Court was careful to notethat the decision did not address any otherexceptions to the warrant requirement, 569U.S., at ––––, n. 3, 133 S.Ct., at 1559, n. 3.

Petitioners and Justice SOTOMAYORnext suggest that requiring a warrant forBAC testing in every case in which amotorist is arrested for drunk drivingwould not impose any great burden on thepolice or the courts. But of course thesame argument could be made aboutsearching through objects found on thearrestee’s possession, which our cases per-mit even in the absence of a warrant.What about the cigarette package in Rob-inson ? What if a motorist arrested fordrunk driving has a flask in his pocket?What if a motorist arrested for drivingwhile under the influence of marijuana haswhat appears to be a marijuana cigaretteon his person? What about an unmarkedbottle of pills?

If a search warrant were required forevery search incident to arrest that doesnot involve exigent circumstances, thecourts would be swamped. And even if wearbitrarily singled out BAC tests incidentto arrest for this special treatment, as itappears the dissent would do, see post, at2192 – 2194, the impact on the courtswould be considerable. The number ofarrests every year for driving under theinfluence is enormous—more than 1.1 mil-lion in 2014. FBI, Uniform Crime Report,Crime in the United States, 2014, Arrests2 (Fall 2015). Particularly in sparselypopulated areas, it would be no small taskfor courts to field a large new influx ofwarrant applications that could come onany day of the year and at any hour. Inmany jurisdictions, judicial officers havethe authority to issue warrants only withintheir own districts, see, e.g., Fed. RuleCrim. Proc. 41(b); N.D. Rule Crim. Proc.41(a) (2016–2017), and in rural areas, somedistricts may have only a small number ofjudicial officers.

North Dakota, for instance, has only 51state district judges spread across eight


judicial districts.4 Those judges are assist-ed by 31 magistrates, and there are nomagistrates in 20 of the State’s 53 coun-ties.5 At any given location in the State,then, relatively few state officials have au-thority to issue search warrants.6 Yet theState, with a population of roughly 740,000,sees nearly 7,000 drunk-driving arrestseach year. Office of North Dakota Attor-ney General, Crime in North Dakota, 2014,pp. 5, 47 (2015). With a small number ofjudicial officers authorized to issue war-rants in some parts of the State, the bur-den of fielding BAC warrant applications24 hours per day, 365 days of the yearwould not be the light burden that peti-tioners and Justice SOTOMAYOR suggest.

[10] In light of this burden and ourprior search-incident-to-arrest precedents,petitioners would at a minimum have toshow some special need for warrants forBAC testing. It is therefore appropriateto consider the benefits that such applica-tions would provide. Search warrants pro-tect privacy in two main ways. First, theyensure that a search is not carried outunless a neutral magistrate makes an inde-pendent determination that there is proba-ble cause to believe that evidence will befound. See, e.g., Riley, 573 U.S., at ––––,134 S.Ct., at 2482. Second, if the magis-trate finds probable cause, the warrantlimits the intrusion on privacy by specify-ing the scope of the search—that is, thearea that can be searched and the itemsthat can be sought. United States v.Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53L.Ed.2d 538 (1977), abrogated on other

grounds, Acevedo, 500 U.S. 565, 111 S.Ct.1982, 114 L.Ed.2d 619.

How well would these functions be per-formed by the warrant applications thatpetitioners propose? In order to persuadea magistrate that there is probable causefor a search warrant, the officer wouldtypically recite the same facts that led theofficer to find that there was probablecause for arrest, namely, that there isprobable cause to believe that a BAC testwill reveal that the motorist’s blood alcohollevel is over the limit. As these threecases suggest, see Part II, supra, the factsthat establish probable cause are largelythe same from one drunk-driving stop tothe next and consist largely of the officer’sown characterization of his or her observa-tions—for example, that there was astrong odor of alcohol, that the motoristwobbled when attempting to stand, thatthe motorist paused when reciting the al-phabet or counting backwards, and so on.A magistrate would be in a poor position tochallenge such characterizations.

As for the second function served bysearch warrants—delineating the scope ofa search—the warrants in question herewould not serve that function at all. Inevery case the scope of the warrant wouldsimply be a BAC test of the arrestee. Cf.Skinner, 489 U.S., at 622, 109 S.Ct. 1402(‘‘[I]n light of the standardized nature ofthe tests and the minimal discretion vestedin those charged with administering theprogram, there are virtually no facts for aneutral magistrate to evaluate’’). Forthese reasons, requiring the police to ob-tain a warrant in every case would impose

4. See North Dakota Supreme Court, All Dis-trict Judges, http://www.ndcourts.gov/court/districts/judges.htm (all Internet materials aslast visited June 21, 2016).

5. See North Dakota Supreme Court, Magis-trates, http://www.ndcourts.gov/court/counties/magistra/members.htm.

6. North Dakota Supreme Court justices ap-parently also have authority to issue warrantsstatewide. See ND Op. Atty. Gen. 99–L–132,p. 2 (Dec. 30, 1999). But we highly doubtthat they regularly handle search-warrant ap-plications, much less during graveyard shifts.


a substantial burden but no commensuratebenefit.

Petitioners advance other alternatives towarrantless BAC tests incident to arrest,but these are poor substitutes. Relying ona recent NHTSA report, petitioner Birch-field identifies 19 strategies that he claimswould be at least as effective as impliedconsent laws, including high-visibility so-briety checkpoints, installing ignition inter-locks on repeat offenders’ cars that woulddisable their operation when the driver’sbreath reveals a sufficiently high alcoholconcentration, and alcohol treatment pro-grams. Brief for Petitioner in No. 14–1468, at 44–45. But Birchfield ignores thefact that the cited report describes manyof these measures, such as checkpoints, assignificantly more costly than test refusalpenalties. NHTSA, A. Goodwin et al.,Countermeasures That Work: A HighwaySafety Countermeasures Guide for StateHighway Safety Offices, p. 1–7 (No.811727, 7th ed. 2013). Others, such asignition interlocks, target only a segmentof the drunk-driver population. And stillothers, such as treatment programs, arealready in widespread use, see id., at 1–8,including in North Dakota and Minnesota.Moreover, the same NHTSA report, in linewith the agency’s guidance elsewhere,stresses that BAC test refusal penaltieswould be more effective if the conse-quences for refusal were made more se-vere, including through the addition ofcriminal penalties. Id., at 1–16 to 1–17.

3

Petitioner Bernard objects to the wholeidea of analyzing breath and blood tests assearches incident to arrest. That doctrine,he argues, does not protect the sort ofgovernmental interests that warrantlessbreath and blood tests serve. On his read-ing, this Court’s precedents permit asearch of an arrestee solely to prevent the

arrestee from obtaining a weapon or tak-ing steps to destroy evidence. See ReplyBrief in No. 14–1470, at 4–6. In Chimel,for example, the Court derived its limita-tion for the scope of the permittedsearch—‘‘the area into which an arresteemight reach’’—from the principle that offi-cers may reasonably search ‘‘the area fromwithin which he might gain possession of aweapon or destructible evidence.’’ 395U.S., at 763, 89 S.Ct. 2034. Stopping anarrestee from destroying evidence, Ber-nard argues, is critically different frompreventing the loss of blood alcohol evi-dence as the result of the body’s metabo-lism of alcohol, a natural process overwhich the arrestee has little control. Re-ply Brief in No. 14–1470, at 5–6.

The distinction that Bernard draws be-tween an arrestee’s active destruction ofevidence and the loss of evidence due to anatural process makes little sense. Inboth situations the State is justifiably con-cerned that evidence may be lost, and Ber-nard does not explain why the cause of theloss should be dispositive. And in factmany of this Court’s post-Chimel caseshave recognized the State’s concern, notjust in avoiding an arrestee’s intentionaldestruction of evidence, but in ‘‘evidencepreservation’’ or avoiding ‘‘the loss of evi-dence’’ more generally. Riley, 573 U.S., at––––, 134 S.Ct., at 2484; see also Robin-son, 414 U.S., at 234, 94 S.Ct. 467 (‘‘theneed to preserve evidence on his person’’);Knowles v. Iowa, 525 U.S. 113, 118–119,119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (‘‘theneed to discover and preserve evidence;’’‘‘the concern for destruction or loss ofevidence’’ (emphasis added)); Virginia v.Moore, 553 U.S. 164, 176, 128 S.Ct. 1598,170 L.Ed.2d 559 (2008) (the need to ‘‘safe-guard evidence’’). This concern for pre-serving evidence or preventing its lossreadily encompasses the inevitable metab-olization of alcohol in the blood.


Nor is there any reason to suspect thatChimel ’s use of the word ‘‘destruction,’’395 U.S., at 763, 89 S.Ct. 2034, was adeliberate decision to rule out evidenceloss that is mostly beyond the arrestee’scontrol. The case did not involve any evi-dence that was subject to dissipationthrough natural processes, and there is nosign in the opinion that such a situationwas on the Court’s mind.

Bernard attempts to derive more con-crete support for his position fromSchmerber. In that case, the Court statedthat the ‘‘destruction of evidence under thedirect control of the accused’’ is a dangerthat is not present ‘‘with respect tosearches involving intrusions beyond thebody’s surface.’’ 384 U.S., at 769, 86 S.Ct.1826. Bernard reads this to mean that anarrestee cannot be required ‘‘to take achemical test’’ incident to arrest, Brief forPetitioner in No. 14–1470, at 19, but byusing the term ‘‘chemical test,’’ Bernardobscures the fact that Schmerber ’s pas-sage was addressed to the type of test atissue in that case, namely a blood test.The Court described blood tests as‘‘searches involving intrusions beyond thebody’s surface,’’ and it saw these searchesas implicating important ‘‘interests in hu-man dignity and privacy,’’ 384 U.S., at769–770, 86 S.Ct. 1826. Although theCourt appreciated as well that blood tests‘‘involv[e] virtually no risk, trauma, orpain,’’ id., at 771, 86 S.Ct. 1826 its pointwas that such searches still impinge on farmore sensitive interests than the typical

search of the person of an arrestee. Cf.supra, at 2177 – 2178. But breath tests,unlike blood tests, ‘‘are not invasive of thebody,’’ Skinner, 489 U.S., at 626, 109 S.Ct.1402 (emphasis added), and therefore theCourt’s comments in Schmerber are inap-posite when it comes to the type of testBernard was asked to take. Schmerberdid not involve a breath test, and on thequestion of breath tests’ legality, Schmer-ber said nothing.

[11] Finally, Bernard supports his dis-tinction using a passage from the McNeelyopinion, which distinguishes between ‘‘easi-ly disposable evidence’’ over ‘‘which thesuspect has control’’ and evidence, likeblood alcohol evidence, that is lost througha natural process ‘‘in a gradual and rela-tively predictable manner.’’ 569 U.S., at––––, 133 S.Ct., at 1561; see Reply Briefin No. 14–1470, at 5–6. Bernard fails tonote the issue that this paragraph ad-dressed. McNeely concerned only one ex-ception to the usual warrant requirement,the exception for exigent circumstances,and as previously discussed, that exceptionhas always been understood to involve anevaluation of the particular facts of eachcase. Here, by contrast, we are concernedwith the search-incident-to-arrest excep-tion, and as we made clear in Robinsonand repeated in McNeely itself, this au-thority is categorical. It does not dependon an evaluation of the threat to officersafety or the threat of evidence loss in aparticular case.7

7. Justice SOTOMAYOR objects to treatingwarrantless breath tests as searches incidentto a lawful arrest on two additional grounds.

First, she maintains that ‘‘[a]ll of thisCourt’s postarrest exceptions to the warrantrequirement require a law enforcement inter-est separate from criminal investigation.’’Post, at 2194. At least with respect to thesearch-incident-to-arrest doctrine, that is nottrue. As the historical authorities discussedearlier attest, see Part V–A, supra, the doc-

trine has always been understood as servinginvestigative ends, such as ‘‘discover[ing] andseiz[ing] TTT evidences of crime.’’ Weeks v.United States, 232 U.S. 383, 392, 34 S.Ct. 341,58 L.Ed. 652 (1914); see also United States v.Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38L.Ed.2d 427 (1973) (emphasizing ‘‘the needTTT to discover evidence’’). Using breathtests to obtain evidence of intoxication istherefore well within the historical under-standing of the doctrine’s purposes.


[12] Having assessed the effect ofBAC tests on privacy interests and theneed for such tests, we conclude that theFourth Amendment permits warrantlessbreath tests incident to arrests for drunkdriving. The impact of breath tests onprivacy is slight, and the need for BACtesting is great.

[13] We reach a different conclusionwith respect to blood tests. Blood testsare significantly more intrusive, and theirreasonableness must be judged in light ofthe availability of the less invasive alterna-tive of a breath test. Respondents haveoffered no satisfactory justification for de-manding the more intrusive alternativewithout a warrant.

Neither respondents nor their amici dis-pute the effectiveness of breath tests inmeasuring BAC. Breath tests have been incommon use for many years. Their re-sults are admissible in court and are wide-ly credited by juries, and respondents donot dispute their accuracy or utility.What, then, is the justification for warrant-less blood tests?

One advantage of blood tests is theirability to detect not just alcohol but alsoother substances that can impair a driver’sability to operate a car safely. See Brieffor New Jersey et al. as Amici Curiae 9;Brief for United States as Amicus Curiae6. A breath test cannot do this, but policehave other measures at their disposalwhen they have reason to believe that amotorist may be under the influence ofsome other substance (for example, if abreath test indicates that a clearly im-

paired motorist has little if any alcohol inhis blood). Nothing prevents the policefrom seeking a warrant for a blood testwhen there is sufficient time to do so inthe particular circumstances or from rely-ing on the exigent circumstances exceptionto the warrant requirement when there isnot. See McNeely, 569 U.S., at –––– –––––, 133 S.Ct., at 1568.

A blood test also requires less driverparticipation than a breath test. In orderfor a technician to take a blood sample, allthat is needed is for the subject to remainstill, either voluntarily or by being immobi-lized. Thus, it is possible to extract ablood sample from a subject who forciblyresists, but many States reasonably prefernot to take this step. See, e.g., Neville,459 U.S., at 559–560, 103 S.Ct. 916. NorthDakota, for example, tells us that it gener-ally opposes this practice because of therisk of dangerous altercations between po-lice officers and arrestees in rural areaswhere the arresting officer may not havebackup. Brief for Respondent in No. 14–1468, p. 29. Under current North Dakotalaw, only in cases involving an accidentthat results in death or serious injury mayblood be taken from arrestees who resist.Compare N.D. Cent.Code Ann. §§ 39–20–04(1), 39–20–01, with § 39–20–01.1.

It is true that a blood test, unlike abreath test, may be administered to a per-son who is unconscious (perhaps as a re-sult of a crash) or who is unable to do whatis needed to take a breath test due toprofound intoxication or injuries. But we

Second, Justice SOTOMAYOR contendsthat the search-incident-to-arrest doctrinedoes not apply when ‘‘a narrower exceptionto the warrant requirement adequately satis-fies the governmental needs asserted.’’ Post,at 2190, n. 3; see also post, at 2195 – 2196.But while this Court’s cases have certainlyrecognized that ‘‘more targeted’’ exceptionsto the warrant requirement may justify a war-

rantless search even when the search-inci-dent-to-arrest exception would not, Riley v.California, 573 U.S. ––––, ––––, 134 S.Ct.2473, 2487, 189 L.Ed.2d 430 (2014), JusticeSOTOMAYOR cites no authority for the prop-osition that an exception to the warrant re-quirement cannot apply simply because a‘‘narrower’’ exception might apply.


have no reason to believe that such situa-tions are common in drunk-driving arrests,and when they arise, the police may applyfor a warrant if need be.

A breath test may also be ineffective ifan arrestee deliberately attempts to pre-vent an accurate reading by failing to blowinto the tube for the requisite length oftime or with the necessary force. Butcourts have held that such conduct quali-fies as a refusal to undergo testing, e.g.,Andrews v. Turner, 52 Ohio St.2d 31, 36–37, 368 N.E.2d 1253, 1256–1257 (1977); Inre Kunneman, 501 P.2d 910, 910–911(Okla.Civ.App.1972); see generally 1 Er-win § 4.08[2] (collecting cases), and it maybe prosecuted as such. And again, a war-rant for a blood test may be sought.

[14] Because breath tests are signifi-cantly less intrusive than blood tests andin most cases amply serve law enforcementinterests, we conclude that a breath test,but not a blood test, may be administeredas a search incident to a lawful arrest fordrunk driving. As in all cases involvingreasonable searches incident to arrest, awarrant is not needed in this situation.8

VI

[15, 16] Having concluded that thesearch incident to arrest doctrine does notjustify the warrantless taking of a bloodsample, we must address respondents’ al-

ternative argument that such tests are jus-tified based on the driver’s legally impliedconsent to submit to them. It is wellestablished that a search is reasonablewhen the subject consents, e.g., Schneck-loth v. Bustamonte, 412 U.S. 218, 219, 93S.Ct. 2041, 36 L.Ed.2d 854 (1973), and thatsometimes consent to a search need not beexpress but may be fairly inferred fromcontext, cf. Florida v. Jardines, 569 U.S. 1,–––– – ––––, 133 S.Ct. 1409, 1415–1416, 185L.Ed.2d 495 (2013); Marshall v. Barlow’s,Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56L.Ed.2d 305 (1978). Our prior opinionshave referred approvingly to the generalconcept of implied-consent laws that im-pose civil penalties and evidentiary conse-quences on motorists who refuse to com-ply. See, e.g., McNeely, supra, at ––––,133 S.Ct., at 1565–1566 (plurality opinion);Neville, supra, at 560, 103 S.Ct. 916. Peti-tioners do not question the constitutionali-ty of those laws, and nothing we say hereshould be read to cast doubt on them.

It is another matter, however, for aState not only to insist upon an intrusiveblood test, but also to impose criminalpenalties on the refusal to submit to such atest. There must be a limit to the conse-quences to which motorists may bedeemed to have consented by virtue of adecision to drive on public roads.

8. Justice THOMAS partly dissents from thisholding, calling any distinction betweenbreath and blood tests ‘‘an arbitrary line inthe sand.’’ Post, at 2197 (opinion concurringin judgment in part and dissenting in part).Adhering to a position that the Court rejectedin McNeely, Justice THOMAS would hold thatboth breath and blood tests are constitutionalwith or without a warrant because of thenatural metabolization of alcohol in thebloodstream. Post, at 2187 – 2189. Yet Jus-tice THOMAS does not dispute our conclu-sions that blood draws are more invasive thanbreath tests, that breath tests generally servestate interests in combating drunk driving as

effectively as blood tests, and that our deci-sion in Riley calls for a balancing of individu-al privacy interests and legitimate state inter-ests to determine the reasonableness of thecategory of warrantless search that is at issue.Contrary to Justice THOMAS’s contention,this balancing does not leave law enforcementofficers or lower courts with unpredictablerules, because it is categorical and not ‘‘case-by-case,’’ post, at 2187. Indeed, today’s deci-sion provides very clear guidance that theFourth Amendment allows warrantless breathtests, but as a general rule does not allowwarrantless blood draws, incident to a lawfuldrunk-driving arrest.


[17, 18] Respondents and their amiciall but concede this point. North Dakotaemphasizes that its law makes refusal amisdemeanor and suggests that laws pun-ishing refusal more severely would presenta different issue. Brief for Respondent inNo. 14–1468, at 33–34. Borrowing fromour Fifth Amendment jurisprudence, theUnited States suggests that motoristscould be deemed to have consented to onlythose conditions that are ‘‘reasonable’’ inthat they have a ‘‘nexus’’ to the privilege ofdriving and entail penalties that are pro-portional to severity of the violation. Brieffor United States as Amicus Curiae 21–27.But in the Fourth Amendment setting, thisstandard does not differ in substance fromthe one that we apply, since reasonable-ness is always the touchstone of FourthAmendment analysis, see Brigham City v.Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943,164 L.Ed.2d 650 (2006). And applying thisstandard, we conclude that motorists can-not be deemed to have consented to submitto a blood test on pain of committing acriminal offense.

VII

Our remaining task is to apply our legalconclusions to the three cases before us.

[19] Petitioner Birchfield was criminal-ly prosecuted for refusing a warrantlessblood draw, and therefore the search herefused cannot be justified as a searchincident to his arrest or on the basis ofimplied consent. There is no indication inthe record or briefing that a breath testwould have failed to satisfy the State’sinterests in acquiring evidence to enforceits drunk-driving laws against Birchfield.

And North Dakota has not presented anycase-specific information to suggest thatthe exigent circumstances exception wouldhave justified a warrantless search. Cf.McNeely, 569 U.S., at –––– – ––––, 133S.Ct., at 1567. Unable to see any otherbasis on which to justify a warrantless testof Birchfield’s blood, we conclude thatBirchfield was threatened with an unlawfulsearch and that the judgment affirming hisconviction must be reversed.

Bernard, on the other hand, was crimi-nally prosecuted for refusing a warrantlessbreath test. That test was a permissiblesearch incident to Bernard’s arrest fordrunk driving, an arrest whose legalityBernard has not contested. Accordingly,the Fourth Amendment did not requireofficers to obtain a warrant prior to de-manding the test, and Bernard had noright to refuse it.

[20] Unlike the other petitioners, Bey-lund was not prosecuted for refusing atest. He submitted to a blood test afterpolice told him that the law required hissubmission, and his license was then sus-pended and he was fined in an administra-tive proceeding. The North Dakota Su-preme Court held that Beylund’s consentwas voluntary on the erroneous assump-tion that the State could permissibly com-pel both blood and breath tests. Becausevoluntariness of consent to a search mustbe ‘‘determined from the totality of all thecircumstances,’’ Schneckloth, supra, at 227,93 S.Ct. 2041 we leave it to the state courton remand to reevaluate Beylund’s consentgiven the partial inaccuracy of the officer’sadvisory.9

9. If the court on remand finds that Beylunddid not voluntarily consent, it will have toaddress whether the evidence obtained in thesearch must be suppressed when the searchwas carried out pursuant to a state statute,see Heien v. North Carolina, 574 U.S. ––––,–––– – ––––, 135 S.Ct. 530, 537–539, 190

L.Ed.2d 475 (2014), and the evidence is of-fered in an administrative rather than crimi-nal proceeding, see Pennsylvania Bd. of Pro-bation and Parole v. Scott, 524 U.S. 357, 363–364, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998).And as Beylund notes, remedies may be avail-


We accordingly reverse the judgment ofthe North Dakota Supreme Court in No.14–1468 and remand the case for furtherproceedings not inconsistent with thisopinion. We affirm the judgment of theMinnesota Supreme Court in No. 14–1470.And we vacate the judgment of the NorthDakota Supreme Court in No. 14–1507 andremand the case for further proceedingsnot inconsistent with this opinion.

It is so ordered.

Justice SOTOMAYOR, with whomJustice GINSBURG joins, concurring inpart and dissenting in part.

The Court today considers three consoli-dated cases. I join the majority’s disposi-tion of Birchfield v. North Dakota, No. 14–1468, and Beylund v. Levi, No. 14–1507, inwhich the Court holds that the search-incident-to-arrest exception to the FourthAmendment’s warrant requirement doesnot permit warrantless blood tests. But Idissent from the Court’s disposition of Ber-nard v. Minnesota, No. 14–1470, in whichthe Court holds that the same exceptionpermits warrantless breath tests. Be-cause no governmental interest categori-cally makes it impractical for an officer toobtain a warrant before measuring a driv-er’s alcohol level, the Fourth Amendmentprohibits such searches without a warrant,unless exigent circumstances exist in aparticular case.1

I

A

As the Court recognizes, the proper dis-position of this case turns on whether theFourth Amendment guarantees a right not

to be subjected to a warrantless breathtest after being arrested. The FourthAmendment provides:

‘‘The right of the people to be secure intheir persons, houses, papers, and ef-fects, against unreasonable searches andseizures, shall not be violated, and noWarrants shall issue, but upon probablecause, supported by Oath or affirmation,and particularly describing the place tobe searched, and the persons or thingsto be seized.’’

The ‘‘ultimate touchstone of the FourthAmendment is ‘reasonableness.’ ’’ BrighamCity v. Stuart, 547 U.S. 398, 403, 126 S.Ct.1943, 164 L.Ed.2d 650 (2006). A citizen’sFourth Amendment right to be free from‘‘unreasonable searches’’ does not disap-pear upon arrest. Police officers maywant to conduct a range of searches afterplacing a person under arrest. They maywant to pat the arrestee down, search herpockets and purse, peek inside her wallet,scroll through her cellphone, examine hercar or dwelling, swab her cheeks, or takeblood and breath samples to determine herlevel of intoxication. But an officer is notauthorized to conduct all of these searchessimply because he has arrested someone.Each search must be separately analyzedto determine its reasonableness.

Both before and after a person has beenarrested, warrants are the usual safeguardagainst unreasonable searches becausethey guarantee that the search is not a‘‘random or arbitrary ac[t] of governmentagents,’’ but is instead ‘‘narrowly limited inits objectives and scope.’’ Skinner v. Rail-way Labor Executives’ Assn., 489 U.S.602, 622, 109 S.Ct. 1402, 103 L.Ed.2d 639(1989). Warrants provide the ‘‘detached

able to him under state law. See Brief forPetitioner in No. 14–1507, pp. 13–14.

1. Because I see no justification for warrant-less blood or warrantless breath tests, I also

dissent from the parts of the majority opinionthat justify its conclusions with respect toblood tests on the availability of warrantlessbreath tests. See ante, at 2184.


scrutiny of a neutral magistrate, and thusensur[e] an objective determination wheth-er an intrusion is justified.’’ Ibid. Andthey give life to our instruction that theFourth Amendment ‘‘is designed to pre-vent, not simply to redress, unlawful policeaction.’’ Steagald v. United States, 451U.S. 204, 215, 101 S.Ct. 1642, 68 L.Ed.2d38 (1981) (internal quotation marks omit-ted).

Because securing a warrant before asearch is the rule of reasonableness, thewarrant requirement is ‘‘subject only to afew specifically established and well-delin-eated exceptions.’’ Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19L.Ed.2d 576 (1967). To determine wheth-er to ‘‘exempt a given type of searchfrom the warrant requirement,’’ thisCourt traditionally ‘‘assess[es], on the onehand, the degree to which it intrudesupon an individual’s privacy and, on theother, the degree to which it is neededfor the promotion of legitimate govern-mental interests.’’ Riley v. California,573 U.S. ––––, ––––, 134 S.Ct. 2473, 2484,189 L.Ed.2d 430 (2014) (internal quotationmarks omitted). In weighing ‘‘whetherthe public interest demands creation of ageneral exception to the Fourth Amend-ment’s warrant requirement, the questionis not whether the public interest justifiesthe type of search in question,’’ but, morespecifically, ‘‘whether the burden of ob-taining a warrant is likely to frustrate thegovernmental purpose behind the search.’’Camara v. Municipal Court of City and

County of San Francisco, 387 U.S. 523,533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967);see also Almeida–Sanchez v. UnitedStates, 413 U.S. 266, 282–283, 93 S.Ct.2535, 37 L.Ed.2d 596 (1973) (Powell, J.,concurring) (noting that in areas rangingfrom building inspections to automobilesearches, the Court’s ‘‘general approachto exceptions to the warrant requirement’’is to determine whether a ‘‘ ‘warrant sys-tem can be constructed that would befeasible and meaningful’ ’’); United Statesv. United States Dist. Court for EasternDist. of Mich., 407 U.S. 297, 315, 92 S.Ct.2125, 32 L.Ed.2d 752 (1972) (‘‘We mustTTT ask whether a warrant requirementwould unduly frustrate the [governmentalinterest]’’).2

Applying these principles in past cases,this Court has recognized two kinds ofexceptions to the warrant requirementthat are implicated here: (1) case-by-caseexceptions, where the particularities of anindividual case justify a warrantless searchin that instance, but not others; and (2)categorical exceptions, where the common-alities among a class of cases justify dis-pensing with the warrant requirement forall of those cases, regardless of their indi-vidual circumstances.

Relevant here, the Court allows war-rantless searches on a case-by-case basiswhere the ‘‘exigencies’’ of the particularcase ‘‘make the needs of law enforcementso compelling that a warrantless search isobjectively reasonable’’ in that instance.

2. The Court is wrong to suggest that becausethe States are seeking an extension of the‘‘existing’’ search-incident-to-arrest exceptionrather than the ‘‘creation’’ of a new exceptionfor breath searches, this Court need not deter-mine whether the governmental interest inthese searches can be accomplished withoutexcusing the warrant requirement. Ante, at2197. To the contrary, as the very sentencethe Court cites illustrates, the question is al-ways whether the particular ‘‘type of search

in question’’ is reasonable if conducted with-out a warrant. Camara, 387 U.S., at 533, 87S.Ct. 1727. To answer that question, in everycase, courts must ask whether the ‘‘burden ofobtaining a warrant is likely to frustrate thegovernmental purpose behind the search.’’Ibid. This question may be answered based onexisting doctrine, or it may require the cre-ation of new doctrine, but it must always beasked.


Missouri v. McNeely, 569 U.S. ––––, ––––,133 S.Ct. 1552, 1558, 185 L.Ed.2d 696(2013) (quoting Kentucky v. King, 563 U.S.452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865(2011)). The defining feature of the exi-gent circumstances exception is that theneed for the search becomes clear onlyafter ‘‘all of the facts and circumstances ofthe particular case’’ have been consideredin light of the ‘‘totality of the circum-stances.’’ 569 U.S., at ––––, 133 S.Ct., at1560. Exigencies can include officers’‘‘need to provide emergency assistance toan occupant of a home, engage in ‘hotpursuit’ of a fleeing suspect, or enter aburning building to put out a fire andinvestigate its cause.’’ Id., at ––––, 133S.Ct., at 1559 (citations omitted).

Exigencies can also arise in efforts tomeasure a driver’s blood alcohol level. InSchmerber v. California, 384 U.S. 757, 86S.Ct. 1826, 16 L.Ed.2d 908 (1966), for in-stance, a man sustained injuries in a caraccident and was transported to the hospi-tal. While there, a police officer arrestedhim for drunk driving and ordered a war-rantless blood test to measure his bloodalcohol content. This Court noted thatalthough the warrant requirement general-ly applies to postarrest blood tests, a war-rantless search was justified in that casebecause several hours had passed whilethe police investigated the scene of thecrime and Schmerber was taken to thehospital, precluding a timely securing of awarrant. Id., at 770–771, 86 S.Ct. 1826.

This Court also recognizes some formsof searches in which the governmental in-terest will ‘‘categorically’’ outweigh theperson’s privacy interest in virtually anycircumstance in which the search is con-ducted. Relevant here is the search-inci-dent-to-arrest exception. That exceptionallows officers to conduct a limited postar-rest search without a warrant to combatrisks that could arise in any arrest situa-

tion before a warrant could be obtained:‘‘ ‘to remove any weapons that the [arres-tee] might seek to use in order to resistarrest or effect his escape’ ’’ and to ‘‘ ‘seizeany evidence on the arrestee’s person inorder to prevent its concealment or de-struction.’ ’’ Riley, 573 U.S., at ––––, 134S.Ct., at 2483 (quoting Chimel v. Califor-nia, 395 U.S. 752, 763, 89 S.Ct. 2034, 23L.Ed.2d 685 (1969)). That rule applies‘‘categorical[ly]’’ to all arrests because theneed for the warrantless search arisesfrom the very ‘‘fact of the lawful arrest,’’not from the reason for arrest or the cir-cumstances surrounding it. United Statesv. Robinson, 414 U.S. 218, 225, 235, 94S.Ct. 467, 38 L.Ed.2d 427 (1973).

Given these different kinds of exceptionsto the warrant requirement, if some formof exception is necessary for a particularkind of postarrest search, the next step isto ask whether the governmental need toconduct a warrantless search arises from‘‘threats’’ that ‘‘ ‘lurk in all custodial ar-rests’ ’’ and therefore ‘‘justif[ies] dispens-ing with the warrant requirement acrossthe board,’’ or, instead, whether thethreats ‘‘may be implicated in a particularway in a particular case’’ and are therefore‘‘better addressed through consideration ofcase-specific exceptions to the warrant re-quirement, such as the one for exigentcircumstances.’’ Riley, 573 U.S., at ––––,134 S.Ct., at 2486 (alterations and internalquotation marks omitted).

To condense these doctrinal consider-ations into a straightforward rule, thequestion is whether, in light of the individ-ual’s privacy, a ‘‘legitimate governmentalinterest’’ justifies warrantless searches—and, if so, whether that governmental in-terest is adequately addressed by a case-by-case exception or requires by its naturea categorical exception to the warrant re-quirement.


B

This Court has twice applied this frame-work in recent terms. Riley v. California,573 U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d430addressed whether, after placing a per-son under arrest, a police officer may con-duct a warrantless search of his cell phonedata. California asked for a categoricalrule, but the Court rejected that request,concluding that cell phones do not presentthe generic arrest-related harms that havelong justified the search-incident-to-arrestexception. The Court found that phonedata posed neither a danger to officer safe-ty nor a risk of evidence destruction oncethe physical phone was secured. Id., at–––– – ––––, 134 S.Ct., at 2485–2488. TheCourt nevertheless acknowledged that theexigent circumstances exception might beavailable in a ‘‘now or never situation.’’Id., at ––––, 134 S.Ct., at 2487 (internalquotation marks omitted). It emphasizedthat ‘‘[i]n light of the availability of theexigent circumstances exception, there isno reason to believe that law enforcementofficers will not be able to address’’ therare needs that would require an on-the-spot search. Id., at ––––, 134 S.Ct., at2494.

Similarly, Missouri v. McNeely, 569U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696applied this doctrinal analysis to a caseinvolving police efforts to measure drivers’blood alcohol levels. In that case, Mis-souri argued that the natural dissipation ofalcohol in a person’s blood justified a perse exigent circumstances exception to thewarrant requirement—in essence, a newkind of categorical exception. The Courtrecognized that exigencies could exist, likein Schmerber, that would justify warrant-less searches. 569 U.S., at ––––, 133 S.Ct.,at 1560. But it also noted that in manydrunk driving situations, no such exigen-cies exist. Where, for instance, ‘‘the war-rant process will not significantly increasethe delay’’ in testing ‘‘because an officercan take steps to secure a warrant’’ whilethe subject is being prepared for the test,there is ‘‘no plausible justification for anexception to the warrant requirement.’’Id., at ––––, 133 S.Ct., at 1561. The Courtthus found it unnecessary to ‘‘depart fromcareful case-by-case assessment of exigen-cy and adopt the categorical rule proposedby the State.’’ Id., at ––––, 133 S.Ct., at1561.3

3. The Court quibbles with our unremarkablestatement that the categorical search-inci-dent-to-arrest doctrine and the case-by-caseexigent circumstances doctrine are part of thesame framework by arguing that a footnote inMcNeely was ‘‘careful to note that the deci-sion did not address any other exceptions tothe warrant requirement.’’ Ante, at 2180 (cit-ing McNeely, 569 U.S., at ––––, n. 3, 133 S.Ct.,at 1559, n. 3). That footnote explains thedifference between categorical exceptions andcase-by-case exceptions generally. Id., at––––, n. 3, 133 S.Ct., at 1559, n. 3. It doesnothing to suggest that the two forms of ex-ceptions should not be considered togetherwhen analyzing whether it is reasonable toexempt categorically a particular form ofsearch from the Fourth Amendment’s warrantrequirement.

It should go without saying that any analy-sis of whether to apply a Fourth Amendment

warrant exception must necessarily be com-parative. If a narrower exception to the war-rant requirement adequately satisfies the gov-ernmental needs asserted, a more sweepingexception will be overbroad and could lead tounnecessary and ‘‘unreasonable searches’’ un-der the Fourth Amendment. Contrary to theCourt’s suggestion that ‘‘no authority’’ sup-ports this proposition, see ante, at 2185 n. 8,our cases have often deployed this common-sense comparative check. See Riley v. Cali-fornia, 573 U.S. ––––, –––– – ––––, 134 S.Ct.2473, 2487, 189 L.Ed.2d 430 (2014) (rejectingthe application of the search-incident-to-ar-rest exception because the exigency exceptionis a ‘‘more targeted wa[y] to address [thegovernment’s] concerns’’); id., at ––––, 134S.Ct., at 2486 (analyzing whether the govern-mental interest can be ‘‘better addressedthrough consideration of case-specific excep-tions to the warrant requirement’’); id., at


II

The States do not challenge McNeely ’sholding that a categorical exigency excep-tion is not necessary to accommodate thegovernmental interests associated with thedissipation of blood alcohol after drunk-driving arrests. They instead seek to ex-empt breath tests from the warrant re-quirement categorically under the search-incident-to-arrest doctrine. The majorityagrees. Both are wrong.

As discussed above, regardless of theexception a State requests, the Court’straditional framework asks whether, inlight of the privacy interest at stake, alegitimate governmental interest ever re-quires conducting breath searches withouta warrant—and, if so, whether that gov-ernmental interest is adequately ad-dressed by a case-by-case exception orrequires a categorical exception to thewarrant requirement. That frameworkdirects the conclusion that a categoricalsearch-incident-to-arrest rule for breathtests is unnecessary to address theStates’ governmental interests in combat-ing drunk driving.

A

Beginning with the governmental inter-ests, there can be no dispute that Statesmust have tools to combat drunk driving.See ante, at 2187 – 2191. But neither theStates nor the Court has demonstratedthat ‘‘obtaining a warrant’’ in cases notalready covered by the exigent circum-stances exception ‘‘is likely to frustrate thegovernmental purpose[s] behind [this]

search.’’ Camara, 387 U.S., at 533, 87S.Ct. 1727.4

First, the Court cites the governmentalinterest in protecting the public fromdrunk drivers. See ante, at 2178 – 2179.But it is critical to note that once a personis stopped for drunk driving and arrested,he no longer poses an immediate threat tothe public. Because the person is alreadyin custody prior to the administration ofthe breath test, there can be no seriousclaim that the time it takes to obtain awarrant would increase the danger thatdrunk driver poses to fellow citizens.

Second, the Court cites the governmen-tal interest in preventing the destructionor loss of evidence. See ante, at 2182 –2183. But neither the Court nor theStates identify any practical reasons whyobtaining a warrant after making an arrestand before conducting a breath test com-promises the quality of the evidence ob-tained. To the contrary, the delays inher-ent in administering reliable breath testsgenerally provide ample time to obtain awarrant.

There is a common misconception thatbreath tests are conducted roadside, imme-diately after a driver is arrested. Whilesome preliminary testing is conductedroadside, reliability concerns with roadsidetests confine their use in most circum-stances to establishing probable cause foran arrest. See 2 R. Erwin, Defense ofDrunk Driving Cases § 18.08 (3d ed. 2015)(‘‘Screening devices are TTT used when it isimpractical to utilize an evidential breathtester (EBT) (e.g. at roadside or at various

––––, 134 S.Ct., at 2494 (noting that ‘‘[i]n lightof the availability of the exigent circum-stances exception, there is no reason to be-lieve that’’ the governmental interest cannotbe satisfied without a categorical search-inci-dent-to-arrest exception); McNeely, 569 U.S.,at ––––, 133 S.Ct., at 1560–1561 (holding thatthe availability of the exigency exception for

circumstances that ‘‘make obtaining a war-rant impractical’’ is ‘‘reason TTT not to acceptthe ‘considerable overgeneralization’ that aper se rule would reflect’’).

4. Although Bernard’s case arises in Minneso-ta, North Dakota’s similar breath test laws arebefore this Court. I therefore consider bothStates together.


work sites)’’). The standard evidentiarybreath test is conducted after a motorist isarrested and transported to a police sta-tion, governmental building, or mobiletesting facility where officers can accessreliable, evidence-grade breath testing ma-chinery. Brief for Respondent in No. 14–1618, p. 8, n. 2; National Highway Trans-portation Safety Admin. (NHTSA), A.Berning et al., Refusal of IntoxicationTesting: A Report to Congress 4, and n. 5(No. 811098, Sept. 2008). Transportingthe motorist to the equipment site is notthe only potential delay in the process,however. Officers must also observe thesubject for 15 to 20 minutes to ensure that‘‘residual mouth alcohol,’’ which can inflateresults and expose the test to an evidentia-ry challenge at trial, has dissipated andthat the subject has not inserted any foodor drink into his mouth.5 In many States,including Minnesota, officers must thengive the motorist a window of time withinwhich to contact an attorney before admin-istering a test.6 Finally, if a breath testmachine is not already active, the policeofficer must set it up. North Dakota’sIntoxilyzer 8000 machine can take as longas 30 minutes to ‘‘warm-up.’’ 7

Because of these necessary steps, thestandard breath test is conducted well af-ter an arrest is effectuated. The Minneso-

ta Court of Appeals has explained thatnearly all breath tests ‘‘involve a time lagof 45 minutes to two hours.’’ State v.Larson, 429 N.W.2d 674, 676 (Minn.App.1988); see also State v. Chirpich, 392N.W.2d 34, 37 (Minn.App.1986). BothNorth Dakota and Minnesota give police a2–hour period from the time the motoristwas pulled over within which to administera breath test. N.D. Cent.Code Ann. § 39–20–04.1(1) (2008); Minn.Stat. § 169A.20,subd. 1(5) (2014).8

During this built-in window, police canseek warrants. That is particularly true inlight of ‘‘advances’’ in technology that nowpermit ‘‘the more expeditious processing ofwarrant applications.’’ McNeely, 569 U.S.,at –––– – ––––, and n. 4, 133 S.Ct., at 1562,and n. 4 (describing increased availabilityof telephonic warrants); Riley, 573 U.S., at––––, 134 S.Ct., at 2493–2494 (describingjurisdictions that have adopted an e-mailwarrant system that takes less than 15minutes); Minn. Rules Crim. Proc. 33.05,36.01–36.08 (2010 and Supp. 2013) (allow-ing telephonic warrants); N.D. RulesCrim. Proc. 41(c)(2)–(3) (2013) (same).Moreover, counsel for North Dakota ex-plained at oral argument that the Stateuses a typical ‘‘on-call’’ system in whichsome judges are available even during off-duty times.9 See Tr. of Oral Arg. 42.

5. See NHTSA and International Assn. ofChiefs of Police, DWI Detection and Stan-dardized Field Sobriety Testing ParticipantGuide, Session 7, p. 20 (2013).

6. See Minn.Stat. § 169A.51, subd. 2(4) (2014)(‘‘[T]he person has the right to consult withan attorney, but TTT this right is limited to theextent that it cannot unreasonably delay ad-ministration of the test’’); see also Kuhn v.Commissioner of Public Safety, 488 N.W.2d838 (Minn.App.1992) (finding 24 minutes in-sufficient time to contact an attorney beforebeing required to submit to a test).

7. See Office of Attorney General, Crime Lab.Div., Chemical Test Training Student Manual,Fall 2011–Spring 2012, p. 13 (2011).

8. Many tests are conducted at the outerboundaries of that window. See, e.g., Israel v.Commissioner of Public Safety, 400 N.W.2d428 (Minn.App.1987) (57 minute poststop de-lay); Mosher v. Commissioner of Public Safety,2015 WL 3649344 (Minn.App., June 15, 2015)(119 minute postarrest delay); Johnson v.Commissioner of Public Safety, 400 N.W.2d195 (Minn.App.1987) (96 minute postarrestdelay); Scheiterlein v. Commissioner of PublicSafety, 2014 WL 3021278 (Minn.App., July 7,2014) (111 minute poststop delay).

9. Counsel for North Dakota represented atoral argument that in ‘‘larger jurisdictions’’ it‘‘takes about a half an hour’’ to obtain awarrant. Tr. of Oral Arg. 42. Counsel said


Where ‘‘an officer can TTT secure a war-rant while’’ the motorist is being trans-ported and the test is being prepared, thisCourt has said that ‘‘there would be noplausible justification for an exception tothe warrant requirement.’’ McNeely, 569U.S., at ––––, 133 S.Ct., at 1561. Neitherthe Court nor the States provide any evi-dence to suggest that, in the normal courseof affairs, obtaining a warrant and con-ducting a breath test will exceed the allot-ted 2–hour window.

Third, the Court and the States cite agovernmental interest in minimizing thecosts of gathering evidence of drunk driv-ing. But neither has demonstrated thatrequiring police to obtain warrants forbreath tests would impose a sufficientlysignificant burden on state resources tojustify the elimination of the FourthAmendment’s warrant requirement. TheCourt notes that North Dakota has 82judges and magistrate judges who are au-thorized to issue warrants. See ante, at2180 – 2181. Because North Dakota hasroughly 7,000 drunk-driving arrests annu-ally, the Court concludes that if policewere required to obtain warrants ‘‘for ev-ery search incident to arrest that does notinvolve exigent circumstances, the courtswould be swamped.’’ Ante, at 2180. Thatconclusion relies on inflated numbers andunsupported inferences.

Assuming that North Dakota police offi-cers do not obtain warrants for any drunk-driving arrests today, and assuming thatthey would need to obtain a warrant forevery drunk-driving arrest tomorrow, eachof the State’s 82 judges and magistratejudges would need to issue fewer than twoextra warrants per week.10 Minnesota hasnearly the same ratio of judges to drunk-driving arrests, and so would face roughlythe same burden.11 These back-of-the-en-velope numbers suggest that the burden ofobtaining a warrant before conducting abreath test would be small in both States.

But even these numbers overstate theburden by a significant degree. Statesonly need to obtain warrants for driverswho refuse testing and a significant ma-jority of drivers voluntarily consent tobreath tests, even in States without crimi-nal penalties for refusal. In North Dako-ta, only 21% of people refuse breath testsand in Minnesota, only 12% refuse.NHTSA, E. Namuswe, H. Coleman, & A.Berning, Breath Test Refusal Rates in theUnited States–2011 Update 2 (No. 8118812014). Including States that impose onlycivil penalties for refusal, the average re-fusal rate is slightly higher at 24%. Id.,at 3. Say that North Dakota’s and Minne-sota’s refusal rates rise to double themean, or 48%. Each of their judges andmagistrate judges would need to issue

that it is sometimes ‘‘harder to get somebodyon the phone’’ in rural jurisdictions, but evenif it took twice as long, the process of obtain-ing a warrant would be unlikely to take long-er than the inherent delays in preparing amotorist for testing and would be particularlyunlikely to reach beyond the 2–hour windowwithin which officers can conduct the test.

10. Seven thousand annual arrests divided by82 judges and magistrate judges is 85.4 extrawarrants per judge and magistrate judge peryear. And 85.4 divided by 52 weeks is 1.64extra warrants per judge and magistratejudge per week.

11. Minnesota has about 25,000 drunk-drivingincidents each year. Minn. Dept. of PublicSafety, Office of Traffic Safety, Minn. Im-paired Driving Facts 2014, p. 2 (2015). InMinnesota, all judges not exercising probatejurisdiction can issue warrants. Minn.Stat.§ 626.06 (2009). But the state district courtjudges appear to do the lion’s share of thatwork. So, conservatively counting only thosejudges, the State has 280 judges that can issuewarrants. Minnesota Judicial Branch, Reportto the Community 23 (2015). Similar toNorth Dakota, that amounts to 1.72 extrawarrants per judge per week.


fewer than one extra warrant a week.12

That bears repeating: The Court finds acategorical exception to the warrant re-quirement because each of a State’sjudges and magistrate judges would needto issue less than one extra warrant aweek.

Fourth, the Court alludes to the need tocollect evidence conveniently. But mereconvenience in investigating drunk drivingcannot itself justify an exception to thewarrant requirement. All of this Court’spostarrest exceptions to the warrant re-quirement require a law enforcement in-terest separate from criminal investigation.The Court’s justification for the searchincident to arrest rule is ‘‘the officer’s safe-ty’’ and the prevention of evidence ‘‘con-cealment or destruction.’’ Chimel, 395U.S., at 763, 89 S.Ct. 2034. The Court’sjustification for the booking exception,which allows police to obtain fingerprintsand DNA without a warrant while bookingan arrestee at the police station, is theadministrative need for identification. SeeMaryland v. King, 569 U.S. ––––, ––––––––––, 133 S.Ct. 1958, 1970–1971, 186L.Ed.2d 1 (2013). The Court’s justificationfor the inventory search exception, whichallows police to inventory the items in thearrestee’s personal possession and car, isthe need to ‘‘protect an owner’s propertywhile it is in the custody of the police, toinsure against claims of lost, stolen, orvandalized property, and to guard the po-lice from danger.’’ Colorado v. Bertine,479 U.S. 367, 372, 107 S.Ct. 738, 93L.Ed.2d 739 (1987).

This Court has never said that mereconvenience in gathering evidence justifiesan exception to the warrant requirement.

See Florida v. Wells, 495 U.S. 1, 4, 110S.Ct. 1632, 109 L.Ed.2d 1 (1990) (suppress-ing evidence where supposed ‘‘inventory’’search was done without standardized cri-teria, suggesting instead ‘‘ ‘a purposefuland general means of discovering evidenceof crime’ ’’). If the simple collection ofevidence justifies an exception to the war-rant requirement even where a warrantcould be easily obtained, exceptions wouldbecome the rule. Ibid.

Finally, as a general matter, the Stateshave ample tools to force compliance withlawfully obtained warrants. This Courthas never cast doubt on the States’ abilityto impose criminal penalties for obstruct-ing a search authorized by a lawfully ob-tained warrant. No resort to violent com-pliance would be necessary to compel atest. If a police officer obtains a warrantto conduct a breath test, citizens can besubjected to serious penalties for obstruc-tion of justice if they decline to cooperatewith the test.

This Court has already taken theweighty step of characterizing breath testsas ‘‘searches’’ for Fourth Amendment pur-poses. See Skinner, 489 U.S., at 616–617,109 S.Ct. 1402. That is because the typicalbreath test requires the subject to activelyblow alveolar (or ‘‘deep lung’’) air into themachine. Ibid. Although the process ofphysically blowing into the machine can becompleted in as little as a few minutes, theend-to-end process can be significantlylonger. The person administering the testmust calibrate the machine, collect at leasttwo separate samples from the arrestee,change the mouthpiece and reset the ma-chine between each, and conduct any addi-tional testing indicated by disparities be-

12. Because each of North Dakota’s judgesand magistrate judges would have to issue anextra 1.64 warrants per week assuming a100% refusal rate, see supra, at 2193, nn. 10–11, they would have to issue an additional

0.79 per week assuming a 48% refusal rate.Adjusting for the same conservatively highrefusal rate, Minnesota would go from 1.72additional warrants per judge per week to just0.82.


tween the two tests.13 Although somesearches are certainly more invasive thanbreath tests, this Court cannot do justiceto their status as Fourth Amendment‘‘searches’’ if exaggerated time pressures,mere convenience in collecting evidence,and the ‘‘burden’’ of asking judges to issuean extra couple of warrants per month arecosts so high as to render reasonable asearch without a warrant.14 The FourthAmendment becomes an empty promise ofprotecting citizens from unreasonablesearches.

B

After evaluating the governmental andprivacy interests at stake here, the finalstep is to determine whether any situa-tions in which warrants would interferewith the States’ legitimate governmentalinterests should be accommodated througha case-by-case or categorical exception tothe warrant requirement.

As shown, because there are so manycircumstances in which obtaining a war-rant will not delay the administration of abreath test or otherwise compromise anygovernmental interest cited by the States,it should be clear that allowing a categori-cal exception to the warrant requirementis a ‘‘considerable overgeneralization’’here. McNeely, 569 U.S., at ––––, 133

S.Ct., at 1561. As this Court concluded inRiley and McNeely, any unusual issuesthat do arise can ‘‘better [be] addressedthrough consideration of case-specific ex-ceptions to the warrant requirement.’’ Ri-ley, 573 U.S., at ––––, 134 S.Ct., at 2486;see also McNeely, 569 U.S., at ––––, 133S.Ct., at 1564 (opinion of SOTOMAYOR,J.).

Without even considering the compara-tive effectiveness of case-by-case and cate-gorical exceptions, the Court reaches forthe categorical search-incident-to-arrestexception and enshrines it for all breathtests. The majority apparently assumesthat any postarrest search should be ana-lyzed under the search-incident-to-arrestdoctrine. See ante, at 2195 (‘‘In the threecases now before us, the drivers weresearched or told that they were requiredto submit to a search after being placedunder arrest for drunk driving. We there-fore consider how the search-incident-to-arrest doctrine applies to breath and bloodtests incident to such arrests’’).

But, as we explained earlier, police offi-cers may want to conduct a range of differ-ent searches after placing a person underarrest. Each of those searches must beseparately analyzed for Fourth Amend-ment compliance. Two narrow types of

13. See Office of Attorney General, Crime Lab.Div., Approved Method To Conduct BreathTests With the Intoxilyzer 8000 (BRS–001),pp. 4–6, 8 (2012).

14. In weighing the governmental interests atstake here, the Court also downplays the‘‘benefits’’ that warrants provide for breathtests. Because this Court has said unequivo-cally that warrants are the usual safeguardagainst unreasonable searches, see Katz v.United States, 389 U.S. 347, 357, 88 S.Ct. 507,19 L.Ed.2d 576 (1967), the legal relevance ofthis discussion is not clear. In any event, theCourt is wrong to conclude that warrantsprovide little benefit here. The Court saysthat any warrants for breath tests would be

issued based on the ‘‘characterization’’ of thepolice officer, which a ‘‘magistrate would bein a poor position to challenge.’’ Ante, at2181. Virtually all warrants will rely to somedegree on an officer’s own perception. Thevery purpose of warrants is to have a neutralarbiter determine whether inferences drawnfrom officers’ perceptions and circumstantialevidence are sufficient to justify a search.Regardless of the particulars, the Court’smode of analysis is a dangerous road to ven-ture down. Historically, our default has beenthat warrants are required. This part of theCourt’s argument instead suggests, withoutprecedent, that their value now has to beproven.


postarrest searches are analyzed togetherunder the rubric of our search-incident-to-arrest doctrine: Searches to disarm arres-tees who could pose a danger before awarrant is obtained and searches to findevidence arrestees have an incentive todestroy before a warrant is obtained. Chi-mel, 395 U.S., at 763, 89 S.Ct. 2034. Otherforms of postarrest searches are analyzeddifferently because they present needsthat require more tailored exceptions tothe warrant requirement. See supra, at2188 – 2189 (discussing postarrest applica-tion of the ‘‘exigency’’ exception); see alsosupra, at 2193 – 2194 (discussing postar-rest booking and inventory exceptions).

The fact that a person is under arrestdoes not tell us which of these warrantexceptions should apply to a particularkind of postarrest search. The way toanalyze which exception, if any, is appro-priate is to ask whether the exception bestaddresses the nature of the postarrestsearch and the needs it fulfills. Yet themajority never explains why the search-incident-to-arrest framework—its justifica-tions, applications, and categorical scope—is best suited to breath tests.

To the contrary, the search-incident-to-arrest exception is particularly ill suited tobreath tests. To the extent the Courtdiscusses any fit between breath tests andthe rationales underlying the search-inci-dent-to-arrest exception, it says that evi-dence preservation is one of the core val-ues served by the exception and worriesthat ‘‘evidence may be lost’’ if breath testsare not conducted. Ante, at 2182 –2183.But, of course, the search-incident-to-ar-rest exception is concerned with evidencedestruction only insofar as that destructionwould occur before a warrant could besought. And breath tests are not, exceptin rare circumstances, conducted at thetime of arrest, before a warrant can beobtained, but at a separate location 40 to

120 minutes after an arrest is effectuated.That alone should be reason to reject anexception forged to address the immediateneeds of arrests.

The exception’s categorical reach makesit even less suitable here. The search-incident-to-arrest exception is applied cate-gorically precisely because the needs itaddresses could arise in every arrest.Robinson, 414 U.S., at 236, 94 S.Ct. 467.But the government’s need to conduct abreath test is present only in arrests fordrunk driving. And the asserted need toconduct a breath test without a warrantarises only when a warrant cannot be ob-tained during the significant built-in delaybetween arrest and testing. The condi-tions that require warrantless breathsearches, in short, are highly situationaland defy the logical underpinnings of thesearch-incident-to-arrest exception and itscategorical application.

* * *

In Maryland v. King, this Court dis-pensed with the warrant requirement andallowed DNA searches following an arrest.But there, it at least attempted to justifythe search using the booking exception’sinterest in identifying arrestees. 569 U.S.,at –––– – ––––, 133 S.Ct., at 1970–1975;id., at –––– – ––––, 133 S.Ct., at 1466–1468(Scalia, J., dissenting). Here, the Courtlacks even the pretense of attempting tosituate breath searches within the narrowand weighty law enforcement needs thathave historically justified the limited use ofwarrantless searches. I fear that if theCourt continues down this road, theFourth Amendment’s warrant requirementwill become nothing more than a sugges-tion.

Justice THOMAS, concurring injudgment in part and dissenting in part.

The compromise the Court reaches to-day is not a good one. By deciding that


some (but not all) warrantless tests reveal-ing the blood alcohol concentration (BAC)of an arrested driver are constitutional, theCourt contorts the search-incident-to-ar-rest exception to the Fourth Amendment’swarrant requirement. The far simpler an-swer to the question presented is the onerejected in Missouri v. McNeely, 569 U.S.––––, 133 S.Ct. 1552, 185 L.Ed.2d 696(2013). Here, the tests revealing the BACof a driver suspected of driving drunk areconstitutional under the exigent-circum-stances exception to the warrant require-ment. Id., at –––– – ––––, 133 S.Ct., at1575–1576 (THOMAS, J., dissenting).

I

Today’s decision chips away at a well-established exception to the warrant re-quirement. Until recently, we have ad-monished that ‘‘[a] police officer’s determi-nation as to how and where to search theperson of a suspect whom he has arrestedis necessarily a quick ad hoc judgmentwhich the Fourth Amendment does notrequire to be broken down in each instanceinto an analysis of each step in the search.’’United States v. Robinson, 414 U.S. 218,235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).Under our precedents, a search incident tolawful arrest ‘‘require[d] no additional jus-tification.’’ Ibid. Not until the recent deci-sion in Riley v. California, 573 U.S. ––––,134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), didthe Court begin to retreat from this cate-gorical approach because it feared that thesearch at issue, the ‘‘search of the informa-tion on a cell phone,’’ bore ‘‘little resem-blance to the type of brief physical search’’contemplated by this Court’s past search-incident-to-arrest decisions. Id., at ––––,134 S.Ct., at 2485. I joined Riley, howev-er, because the Court resisted the tempta-tion to permit searches of some kinds ofcellphone data and not others, id., at–––– – ––––, 134 S.Ct., at 2492–2493, andinstead asked more generally whether that

entire ‘‘category of effects’’ was searchablewithout a warrant, id., at ––––, 134 S.Ct.,at 2485.

Today’s decision begins where Riley leftoff. The Court purports to apply Robin-son but further departs from its categori-cal approach by holding that warrantlessbreath tests to prevent the destruction ofBAC evidence are constitutional searchesincident to arrest, but warrantless bloodtests are not. Ante, at 2185 (‘‘Becausebreath tests are significantly less intrusivethan blood tests and in most cases amplyserve law enforcement interests, we con-clude that a breath test, but not a bloodtest, may be administered as a search inci-dent to a lawful arrest for drunk driving’’).That hairsplitting makes little sense. Ei-ther the search-incident-to-arrest excep-tion permits bodily searches to prevent thedestruction of BAC evidence, or it doesnot.

The Court justifies its result—an arbi-trary line in the sand between blood andbreath tests—by balancing the invasive-ness of the particular type of searchagainst the government’s reasons for thesearch. Ante, at 2176 – 2186. Such case-by-case balancing is bad for the People,who ‘‘through ratification, have alreadyweighed the policy tradeoffs that constitu-tional rights entail.’’ Luis v. UnitedStates, 578 U.S. ––––, ––––, 136 S.Ct. 1083,1101, 194 L.Ed.2d 256 (2016) (THOMAS,J., concurring in judgment); see alsoCrawford v. Washington, 541 U.S. 36, 67–68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).It is also bad for law enforcement officers,who depend on predictable rules to dotheir job, as Members of this Court haveexhorted in the past. See Arizona v.Gant, 556 U.S. 332, 359, 129 S.Ct. 1710,173 L.Ed.2d 485 (2009) (ALITO, J., dis-senting); see also id., at 363, 129 S.Ct.1710 (faulting the Court for ‘‘leav[ing] the


law relating to searches incident to arrestin a confused and unstable state’’).

Today’s application of the search-inci-dent-to-arrest exception is bound to causeconfusion in the lower courts. TheCourt’s choice to allow some (but not all)BAC searches is undeniably appealing, forit both reins in the pernicious problem ofdrunk driving and also purports to pre-serve some Fourth Amendment protec-tions. But that compromise has littlesupport under this Court’s existing prece-dents.

II

The better (and far simpler) way to re-solve these cases is by applying the per serule that I proposed in McNeely. Underthat approach, both warrantless breathand blood tests are constitutional because‘‘the natural metabolization of [BAC] cre-ates an exigency once police have probablecause to believe the driver is drunk. Itnaturally follows that police may conduct asearch in these circumstances.’’ 569 U.S.,at –––– – ––––, 133 S.Ct., at 1576 (dissent-ing opinion).

The Court in McNeely rejected thatbright-line rule and instead adopted a to-tality-of-the-circumstances test examiningwhether the facts of a particular case pre-sented exigent circumstances justifying awarrantless search. Id., at ––––, 133S.Ct., at 1556. The Court ruled that ‘‘thenatural dissipation of alcohol in the blood’’could not ‘‘categorically’’ create an ‘‘exigen-cy’’ in every case. Id., at ––––, 133 S.Ct.,at 1563. The destruction of ‘‘BAC evi-dence from a drunk-driving suspect’’ that‘‘naturally dissipates over time in a gradualand relatively predictable manner,’’ ac-cording to the Court, was qualitatively dif-ferent from the destruction of evidence in‘‘circumstances in which the suspect hascontrol over easily disposable evidence.’’Id., at ––––, 133 S.Ct., at 1561.

Today’s decision rejects McNeely ’s arbi-trary distinction between the destructionof evidence generally and the destructionof BAC evidence. But only for searchesincident to arrest. Ante, at 2182 – 2184.The Court declares that such a distinction‘‘between an arrestee’s active destructionof evidence and the loss of evidence due toa natural process makes little sense.’’Ante, at 2182. I agree. See McNeely,supra, at –––– – ––––, 133 S.Ct., at 1576–1577 (THOMAS, J., dissenting). But italso ‘‘makes little sense’’ for the Court toreject McNeely ’s arbitrary distinction onlyfor searches incident to arrest and not alsofor exigent-circumstances searches whenboth are justified by identical concernsabout the destruction of the same evi-dence. McNeely ’s distinction is no lessarbitrary for searches justified by exigentcircumstances than those justified bysearch incident to arrest.

The Court was wrong in McNeely, andtoday’s compromise is perhaps an inevit-able consequence of that error. Bothsearches contemplated by the state laws atissue in these cases would be constitutionalunder the exigent-circumstances exceptionto the warrant requirement. I respectful-ly concur in the judgment in part anddissent in part.

,

Abigail Noel FISHER, Petitioner

v.

UNIVERSITY OF TEXASAT AUSTIN et al.

No. 14–981.Argued Dec. 9, 2015.

Decided June 23, 2016.

Background: Caucasian applicant whowas denied admission to state university

2160 136 SUPREME COURT REPORTER 136 SUPREME COURT REPORTER tered as a search incident to a lawful...

Documents

Transcript of 2160 136 SUPREME COURT REPORTER 136 SUPREME COURT REPORTER tered as a search incident to a lawful...