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Criminalizing the Invocation of your Fourth Amendment Rights

North Carolina, like many states, has implied consent laws that penalize people for refusing to blow into a machine upon request from a police officer who suspects they may have been driving while impaired.

In North Carolina, the penalty is a civil penalty – a person’s license will be revoked for one year even though the person may otherwise be found not guilty of a DWI. This civil revocation occurs following a DMV hearing.

But in a few states, such as North Dakota, the penalty is criminal. If you fail to blow into a machine, or refuse to blow into a machine, the State can prosecute you under a criminal statute that imposes criminal penalties.

But, you say, isn’t there a Fourth Amendment that requires police to get a search warrant? And haven’t the police failed to get a search warrant, but merely relied upon your “implied consent? Why, Yes.

Which brings us to Birchfield v. North Dakota. What’s not up for debate is the fact that the defendant, Birchfield, was drunk. Following a hearing in state court on a motion to dismiss for an unconstitutional violation of the Defendant’s rights, Birchfield pled guilty, conditioned on his ability to file an appeal. The case was appealed to the North Dakota Supreme Court which upheld the conviction.

The case was heard last week by the United States Supreme Court which three years ago held that it was unconstitutional to draw blood absent a warrant and absent a showing of exigent circumstances.

The days of criminalizing failure to blow into a machine are probably numbered, given the court’s reaction to the arguments in Birchfield. The question will be whether the Court extends the same protections to people who refuse to blow into an Intox machine and have not yet been provided a warrant.

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