Contributions

Fear of Needles or Guilty Conscience? The Fourth Amendment and the Use of BAC Test Refusal Evidence in DUI Prosecutions

by Max Baum­bach1

The Fourth Amend­ment guar­an­tees that “[t]he right of the peo­ple to be secure in their per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures, shall not be vio­lat­ed .…”2 The gen­er­al rule estab­lished by the Supreme Court is that search­es con­duct­ed with­out judi­cial war­rants are per se unlaw­ful, “sub­ject only to a few specif­i­cal­ly estab­lished and well-delin­eat­ed excep­tions.”3

All U.S. states have passed implied con­sent statutes dic­tat­ing that motorists, by virtue of dri­ving on pub­lic roads, have con­sent­ed to chem­i­cal test­ing to deter­mine their blood-alco­hol lev­el (“BAC”).4 Nev­er­the­less, chem­i­cal tests of breath, blood, or urine are search­es sub­ject to the con­straints of the Fourth Amend­ment.5 A state’s author­i­ty to pun­ish dri­vers who reject test­ing is thus sub­ject to lim­i­ta­tions. In Birch­field v. North Dako­ta, the Supreme Court held that a motorist can­not be deemed to have con­sent­ed to a blood draw “on pain of com­mit­ting a crim­i­nal offense.”6

It is less clear, how­ev­er, whether states may intro­duce a person’s refusal to sub­mit to a war­rant­less blood test as evi­dence of guilt in a pros­e­cu­tion for dri­ving under the influ­ence (“DUI”). In Com­mon­wealth v. Bell, the Supreme Court of Penn­syl­va­nia held that such refusal evi­dence was admis­si­ble, and the Unit­ed States Supreme Court denied cer­tio­rari.7 The Penn­syl­va­nia court rea­soned that the state’s implied con­sent statute dif­fer­en­ti­at­ed Bell from oth­er cas­es in which it had held that refus­ing a war­rant­less search can­not be admit­ted as evi­dence of guilt in a sub­se­quent crim­i­nal pros­e­cu­tion.8

The doc­trine endorsed in Bell and by oth­er state courts9 would have sig­nif­i­cant ram­i­fi­ca­tions for civ­il lib­er­ties if for­mal­ly endorsed by the Supreme Court. This is espe­cial­ly appar­ent when viewed against the back­drop of ram­pant racial pro­fil­ing on our nation’s roads and high­ways.10 Con­sid­er a sce­nario in which police stop a motorist of col­or for a minor traf­fic offense, incor­rect­ly deem him to be intox­i­cat­ed, and arrest him. The Bell rule allows the state to com­mand the motorist to sub­mit to an unnec­es­sary blood draw and lat­er pros­e­cute him sole­ly on the basis of his inno­cent­ly moti­vat­ed refusal. Because the rule is a blan­ket rule per­mit­ting all refusal evi­dence in DUI pros­e­cu­tions, the state would be allowed to do this even if admin­is­ter­ing a blood draw would have been unconstitutional.

In light of the Court’s rea­son­ing in Birch­field, as well as its oth­er deci­sions regard­ing the legal­i­ty of war­rant­less blood draws, this Con­tri­bu­tion argues that with­out a search war­rant or war­rant-require­ment excep­tion, the Fourth Amend­ment pro­hibits a state from admit­ting a motorist’s refusal to sub­mit to a blood draw as evi­dence of guilt in a DUI prosecution.

* * * * *

All stan­dard forms of BAC test­ing are search­es with­in the mean­ing of the Fourth Amend­ment.11 How­ev­er, unlike breath tests, which may be freely admin­is­tered with­out war­rants as search­es inci­dent to arrest, blood draws are sub­ject to no cat­e­gor­i­cal war­rant require­ment excep­tions.12 Three prin­ci­pal jus­ti­fi­ca­tions exist for this dis­tinc­tion. The first is a nor­ma­tive jus­ti­fi­ca­tion: a blood draw is an extreme­ly inva­sive pro­ce­dure. It entails a “com­pelled sur­gi­cal intru­sion beneath [a motorist’s] skin and into his veins .…”13 The sec­ond jus­ti­fi­ca­tion, close­ly relat­ed to the first, is that an indi­vid­ual has a pos­ses­so­ry inter­est in his own blood, such that draw­ing blood amounts to “extract[ing] a part of the subject’s body.”14 The third jus­ti­fi­ca­tion is that blood sam­ples can be stored for extend­ed peri­ods of time and con­tain much more infor­ma­tion about a motorist than just his BAC, cre­at­ing addi­tion­al pri­va­cy con­cerns.15

Because one’s BAC lev­el dis­si­pates with the pas­sage of time, a war­rant­less blood draw may be jus­ti­fied by fact-spe­cif­ic exi­gent cir­cum­stances. For exam­ple, where delays asso­ci­at­ed with hos­pi­tal­iz­ing an injured motorist make it imprac­ti­cal to obtain a war­rant, the state may draw the person’s blood with­out judi­cial approval.16 Sim­i­lar­ly, a war­rant­less blood test is usu­al­ly per­mis­si­ble when a motorist is uncon­scious, as breath tests require the sub­ject to active­ly par­tic­i­pate by blow­ing into a tube.17 How­ev­er, the nat­ur­al dis­si­pa­tion of alco­hol from the motorist’s blood does not, in itself, jus­ti­fy a war­rant­less blood draw.18 Fur­ther­more, the rea­son­able­ness of a blood test “must be judged in light of the avail­abil­i­ty of the less inva­sive alter­na­tive of a breath test.”19

Despite the Bell court’s reliance on implied con­sent statutes to dif­fer­en­ti­ate BAC tests from oth­er search­es, these statutes do not pro­vide an inde­pen­dent excep­tion to the war­rant require­ment. Though the Supreme Court has spo­ken approv­ing­ly of the gen­er­al con­cept of implied con­sent laws, its deci­sions “have not rest­ed on the idea that these laws do what their pop­u­lar name might seem to suggest—that is, cre­ate actu­al con­sent to all the search­es they autho­rize.”20 The fact that the Supreme Court in Mis­souri v. McNeely found the BAC test at issue unlawful—even though the state had an implied con­sent statute—confirms that these statutes do not cre­ate actu­al con­sent to chem­i­cal test­ing.21 Mul­ti­ple state courts have reached the same con­clu­sion.22 Were it true that motorists could be deemed to have actu­al­ly con­sent­ed to chem­i­cal test­ing via statute, McNeely and Birch­field could have been resolved on grounds that the peti­tion­ers had con­sent­ed sole­ly by dri­ving. Instead, Birch­field held that con­sent to search­es must be “deter­mined from the total­i­ty of the cir­cum­stances” and can­not be imput­ed by leg­isla­tive fiat.23

The cumu­la­tive effect of these rules is that the gov­ern­ment is rarely autho­rized to com­pel a war­rant­less blood draw from a motorist. Con­sid­er again the sce­nario in which a motorist has been arrest­ed on sus­pi­cion of drunk dri­ving after a pre­tex­tu­al traf­fic stop. The offi­cer then demands a blood draw, despite the fact that the motorist is phys­i­cal­ly capa­ble of per­form­ing a breath test and that there is ample time to admin­is­ter a breath test. Notwith­stand­ing any implied con­sent statute, if the motorist refus­es to con­sent to a blood draw, the puta­tive blood draw would con­sti­tute an ille­gal search if admin­is­tered, and the offi­cer would need to obtain a war­rant for the blood draw or set­tle for a breath test.

* * * * *

The prin­ci­ple that the gov­ern­ment may not “impose a penal­ty upon those who exer­cise a right guar­an­teed by the Con­sti­tu­tion”24 has sub­stan­tial legs in the Supreme Court’s jurispru­dence. For exam­ple, in the Fifth Amend­ment con­text, a defendant’s silence may not be used as evi­dence of his guilt in a crim­i­nal pros­e­cu­tion.25 Nor may his silence be used to impeach an expla­na­tion sub­se­quent­ly offered at tri­al.26

Cir­cuit courts have extend­ed this ratio­nale to the Fourth Amend­ment con­text and have “unan­i­mous­ly held that a defendant’s refusal to con­sent to a war­rant­less search may not be pre­sent­ed as evi­dence of guilt.”27 The high courts of sev­er­al states have also adopt­ed this ratio­nale.28 In sum, near­ly all juris­dic­tions pro­hib­it the use of one’s refusal to con­sent to an oth­er­wise unrea­son­able search as evi­dence of guilt.

The Supreme Court has held that the pur­pose of the Fourth Amend­ment is to “safe­guard the pri­va­cy and secu­ri­ty of indi­vid­u­als against arbi­trary inva­sions by gov­ern­ment offi­cials.”29 As the major­i­ty of state and fed­er­al juris­dic­tions have rec­og­nized, the notion that one has a right to be free from “arbi­trary inva­sions” nec­es­sar­i­ly means that refus­ing cer­tain search­es is “priv­i­leged con­duct” deserv­ing of pro­tec­tion.30 Con­trary to the rea­son­ing behind the Bell rule, these prin­ci­ples are no less applic­a­ble to the blood test refusals in the DUI con­text. In the first instance, there are many “per­son­al rea­sons” why an indi­vid­ual might reject such a test, just as one “would not wish to have the police search­ing through their room.”31 The motorist, for exam­ple, could sim­ply be afraid of nee­dles. But, if the motorist’s refusal, how­ev­er inno­cent­ly moti­vat­ed, were per­mit­ted to form the basis of a crim­i­nal pros­e­cu­tion for DUI, the right to refuse would be evis­cer­at­ed and the author­i­ty of the gov­ern­ment to draw his blood would be self-jus­ti­fy­ing.32

* * * * *

The high courts of Penn­syl­va­nia, Ver­mont, and Col­orado have held that the Unit­ed States Supreme Court has already approved laws that per­mit the admis­sion of refusal evi­dence in DUI pros­e­cu­tions. Penn­syl­va­nia arrived at this con­clu­sion large­ly on the basis of a sin­gle pas­sage in Birch­field:

Our pri­or opin­ions have referred approv­ing­ly to the gen­er­al con­cept of implied-con­sent laws that impose … evi­den­tiary con­se­quences on motorists who refuse to com­ply .… Peti­tion­ers do not ques­tion the con­sti­tu­tion­al­i­ty of those laws, and noth­ing we say here should be read to cast doubt on them.33

The Bell court erred in inter­pret­ing this lan­guage in Birch­field as a full-throat­ed endorse­ment of refusal evi­dence in DUI inves­ti­ga­tions. First­ly, none of the peti­tion­ers in Birch­field had their refusals used against them as evi­dence of guilt, thus they had no rea­son to raise the issue. It is there­fore log­i­cal to read the Court’s “gen­er­al approval” of test refusal evi­dence as dic­ta declin­ing to address the issue at all.

More impor­tant­ly, con­clud­ing that Birch­field green­lit evi­den­tiary con­se­quences for refus­ing BAC tests ignores the rea­son­ing upon which that deci­sion was based. As dis­cussed by Judge Wecht’s dis­sent in Bell, the Court’s “heuris­tic for resolv­ing the con­sti­tu­tion­al ques­tion upon which it grant­ed cer­tio­rari [is] ‘that the crim­i­nal law ordi­nar­i­ly may not com­pel a motorist to sub­mit to the tak­ing of a blood sam­ple or to a breath test’ with­out a war­rant unless ‘such war­rant­less search­es com­port with the Fourth Amend­ment.’”34 Thus, the prop­er inquiry to apply when deter­min­ing whether a refusal may be penal­ized is whether the gov­ern­ment had the author­i­ty to con­duct the refused search, not whether the penal­ty for refusal is suf­fi­cient­ly lenient to jus­ti­fy its impo­si­tion. Low­er fed­er­al courts have con­sis­tent­ly applied this inquiry as well.35

Accord­ing to Pro­fes­sor Wayne LaFave,

[w]hat the cas­es indi­cate is that when defendant’s refusal was with­in the con­text of a rec­og­nized search-war­rant-required cat­e­go­ry, then the Fourth Amend­ment pro­hibits admis­sion of that refusal into evi­dence .… But on the oth­er hand, when it is first deter­mined that no war­rant was required in any event (e.g., tak­ing a breath sam­ple), com­ment on the refusal is per­mis­si­ble.36

This heuris­tic neat­ly explains Birch­field’s first two dis­po­si­tions: the blood draw that peti­tion­er Birch­field refused was oth­er­wise unlaw­ful, thus he could not be penal­ized for refus­ing it; and the breath test that peti­tion­er Bernard refused was a law­ful search inci­dent to arrest, thus he could be penal­ized because he “had no right to refuse it.”37

The Bell court also based its rul­ing on the Supreme Court’s deci­sion in South Dako­ta v. Neville, which held that evi­den­tiary penal­ties for BAC test refusal com­port with the Fifth Amend­ment because the refusal is not com­pelled self-incrim­i­na­tion.38 Such reliance on Neville is mis­placed. Neville did not hold that a state may penal­ize a motorist’s exer­cise of their Fifth Amend­ment right by allow­ing refusal evi­dence; it held that the motorist does not have a Fifth Amend­ment right to refuse BAC test­ing.39 That a motorist has a Fourth Amend­ment right to refuse a war­rant­less, excep­tion­less blood draw has been unas­sail­ably estab­lished by case law.40 It is notable that the opin­ion in Neville, a case decid­ed in 1983, oper­at­ed on the assump­tion that motorists lack any con­sti­tu­tion­al right to refuse blood tests in light of Schmer­ber v. Cal­i­for­nia.41 This inter­pre­ta­tion of Schmer­ber has since been dis­cred­it­ed by the Court’s deci­sion in McNeely, which read Schmer­ber to be a fact-spe­cif­ic deci­sion find­ing that the par­tic­u­lar blood draw in ques­tion was jus­ti­fied by exi­gent cir­cum­stances.42

* * * * *

Birch­field held that there “must be a lim­it to the con­se­quences to which motorists may be deemed to have con­sent­ed by virtue of a deci­sion to dri­ve on pub­lic roads.”43 With­out pre­cise­ly delin­eat­ing the out­er bounds of this lim­it, the Court insist­ed that “impos­ing crim­i­nal penal­ties on the refusal to sub­mit to [a blood draw]” cross­es the line.44

Even if one con­cedes that a state may impose cer­tain penal­ties upon refusal to sub­mit to oth­er­wise unlaw­ful test­ing, rules per­mit­ting the use of refusal evi­dence to pros­e­cute motorists for DUI also cross the Birch­field line. The Ver­mont Supreme Court under­es­ti­mates the acute dan­ger accom­pa­ny­ing such license when it says that “mere­ly allow­ing evi­dence of the refusal at a crim­i­nal DUI tri­al, where a defen­dant can explain the basis for the refusal and the jury can con­sid­er the defen­dan­t’s expla­na­tion for doing so” is “qual­i­ta­tive­ly dif­fer­ent” from mak­ing the refusal a stand­alone crime.45 The Supreme Court could have applied the same rea­son­ing to a sce­nario where a defendant’s Fifth Amend­ment silence is per­mit­ted to be used as evi­dence of his guilt. It did not do so in Grif­fin v. Cal­i­for­nia, because it real­ized that allow­ing such a penal­ty “cuts down on the priv­i­lege by mak­ing its asser­tion cost­ly.”46 So, too, with refusals to con­sent to searches.

The Col­orado Supreme Court has hung its hat on an asser­tion that the Birch­field court “has all but said that any­thing short of crim­i­nal­iz­ing refusal does not imper­mis­si­bly bur­den or penal­ize a defen­dan­t’s Fourth Amend­ment right to be free from an unrea­son­able war­rant­less search.”47 This asser­tion lacks foun­da­tion. The Court in Birch­field stat­ed that “motorists can­not be deemed to have con­sent­ed to sub­mit to a blood test on pain of com­mit­ting a crim­i­nal offense.”48 That is pre­cise­ly what has hap­pened when a motorist is con­vict­ed for drunk dri­ving based sole­ly or par­tial­ly on the exer­cise of his Fourth Amend­ment right to refuse an unrea­son­able blood draw. To say that evi­den­tiary penal­ties for blood draw refusal sur­vive Birch­field as long as they do not make refusal a stand­alone crime is to read lan­guage into the text that is not present, and to pose a dis­tinc­tion with­out a difference.

* * * * *

When a motorist refus­es a war­rant­less blood draw jus­ti­fied nei­ther by exi­gent cir­cum­stances nor any oth­er war­rant excep­tion, he has prop­er­ly exer­cised his Fourth Amend­ment right to be free from an unrea­son­able search. He there­fore can­not be pros­e­cut­ed on the basis of his refusal because the state lacks the author­i­ty to com­pel the test.49 This remains so whether refusal is made its own crime or is employed by the pros­e­cu­tion to impute guilt in an under­ly­ing offense, because hold­ing a motorist’s refusal against him as evi­dence of guilt places “an unfair and imper­mis­si­ble bur­den” on his priv­i­leged con­duct, in direct con­tra­ven­tion of his Fourth Amend­ment rights.50

1. Max Baum­bach is a J.D. Can­di­date (2021) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on a prob­lem pro­duced for the 2020 Her­bert Wech­sler Nation­al Crim­i­nal Law Moot Court Com­pe­ti­tion, host­ed by the Uni­ver­si­ty at Buf­fa­lo School of Law. The ques­tion pre­sent­ed was whether a motorist’s asser­tion of his Fourth Amend­ment right to refuse con­sent to a war­rant­less blood draw may be used as evi­dence of guilt for the offense of dri­ving under the influ­ence, or any relat­ed offense that flows from a DUI find­ing. The views expressed in this con­tri­bu­tion do not nec­es­sar­i­ly rep­re­sent the views of the author. The arti­cle is a dis­til­la­tion of one side of the argu­ment assigned to the team.

2. U.S. Con­st. amend. IV.

3. Mincey v. Ari­zona, 437 U.S. 385, 390 (1978) (quot­ing Katz v. Unit­ed States, 389 U.S. 347 at 357 (1967)).

4. See Nat’l High­way Traf­fic Safe­ty Admin., Dep’t of Transp., Alco­hol and high­way safe­ty:  A Review of the State of Knowl­edge 165, tbl. 5–6, 173 (2011).

5. Skin­ner v. Ry. Labor Exec. Ass’n, 489 U.S. 602, 617 (1989)

6. Birch­field v. North Dako­ta, 136 S. Ct. 2160, 2186 (2016).

7. Com­mon­wealth v. Bell, 211 A.3d 761, 776 (Pa. 2019), cert. denied sub nom. Bell v. Penn­syl­va­nia, 140 S. Ct. 934 (2020).

8. Bell, 211 A.3d at 773; see also Com­mon­wealth v. Welch, 535 A.2d 517 (Pa. 1991) (hold­ing that refus­ing to con­sent to a search can­not be used as evi­dence of guilt out­side the DUI context).

9. See, e.g., State v. Raj­da, 196 A.3d 1108, 1111 (Vt. 2018) (hold­ing that refus­ing a war­rant­less, excep­tion­less blood draw may be admit­ted as evi­dence of guilt in a DUI pros­e­cu­tion); accord Fitzger­ald v. Peo­ple, 394 P.3d 671, 676 (Colo. 2017).

10. See David A. Har­ris, Dri­ving While Black: Racial Pro­fil­ing On Our Nation’s High­ways, Amer­i­can Civ­il Lib­er­ties Union (1999), https://www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways (last vis­it­ed Aug. 14, 2020).

11. See Skin­ner, 489 U.S. at 617.

12. See Mis­souri v. McNeely, 569 U.S. 141, 159 (2013) (hold­ing that motorists’ dimin­ished expec­ta­tion of pri­va­cy in auto­mo­biles does not apply to blood draws); Birch­field, 136 S. Ct. at 2185 (hold­ing that breath tests, but not blood draws, can be jus­ti­fied as search­es inci­dent to arrest).

13. McNeely, 569 U.S. at 148.

14. Birch­field, 136 S. Ct. at 2164.

15. Id.

16. See Schmer­ber v. Cal­i­for­nia, 384 U.S. 757, 770–71 (1966).

17. See Mitchell v. Wis­con­sin, 139 S. Ct. 2525, 2538 (2019).

18. See McNeely, 569 U.S. at 165 (reject­ing a per se exi­gency excep­tion for blood tests in DUI investigations).

19. Birch­field, 136 S. Ct. at 2184.

20. Mitchell, 139 S. Ct. at 2533.

21. See McNeely, 569 U.S. at 147.

22. See, e.g., Com­mon­wealth v. Myers, 164 A.3d 1162, 1180 (Pa. 2017) (hold­ing that the state’s implied con­sent statute “does not con­sti­tute an inde­pen­dent excep­tion to the war­rant require­ment”); Williams v. State, 771 S.E.2d 373, 377 (Ga. 2015) (“[M]ere com­pli­ance with statu­to­ry implied con­sent require­ments does not, per se, equate to actu­al, and there­fore vol­un­tary, con­sent . . . .”); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App. 2014), remand­ed in light of McNeely from Aviles v. Texas, 571 U.S. 1119 (2014) (hold­ing that implied con­sent statutes “[are] not sub­sti­tutes for a war­rant or legal excep­tions to the Fourth Amend­ment war­rant requirement”).

23. See Birch­field, 136 S. Ct. at 2186 (quot­ing Sch­neck­loth v. Bus­ta­monte, 412 U.S. 218, 227 (1973)).

24. Har­man v. Forsse­nius, 380 U.S. 528, 540 (1965) (cit­ing Frost & Frost Truck­ing Co. v. Rail­road Comm’n of Cal­i­for­nia, 271 U.S. 583 (1926)).

25. Grif­fin v. Cal­i­for­nia, 380 U.S. 609, 615 (1965).

26. Doyle v. Ohio, 426 U.S. 610, 618 (1976).

27. Unit­ed States v. Run­yan, 290 F.3d 223, 249 (5th Cir. 2002); accord Unit­ed States v. Dozal, 173 F.2d 787, 794 (10th Cir. 1999); Unit­ed States v. Thame, 846 F.2d 200, 206–07 (3d Cir. 1988); Unit­ed States v. Taxe, 540 F.2d 961, 969 (9th Cir. 1976).

28. See, e.g., State v. Banks, 434 P.3d 361, 348 (Or. 2019) (hold­ing that “a person’s ver­bal refusal to con­sent to a war­rant­less search [can­not] be admit­ted as evi­dence of guilt”); accord Com­mon­wealth v. Chap­man, 136 A.3d 126, 131 (Pa. 2016); State v. Jones, 753 N.W.2d 677, 687 (Minn. 2008); Long­shore v. State, 924 A.2d 1129, 1159 (Md. 2007); State v. Palenkas, 933 P.3d 1269, 1280 (Ariz. 1996); Gar­cia v. State, 712 P.2d 1375, 1376 (N.M. 1986); Elson v. State, 659 P.2d 1195, 1199 (Alas­ka 1983).

29. Cama­ra v. Mun. Ct. of City & Cty. of San Fran­cis­co, 387 U.S. 523, 528 (1967).

30. Unit­ed States v. Prescott, 581 F.2d 1343, 1353 (9th Cir. 1978).

31. Com­mon­wealth v. Welch, 535 A.2d 517, 520 (Pa. 1991); see also Unit­ed States v. Clar­i­ot, 655 F.3d 550, 555 (6th Cir. 2011) (describ­ing evi­den­tiary val­ue of search refusal as “de min­imis”); Unit­ed States v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000) (the same).

32. See Bar­gas v. State, 489 P.2d 130, 132 (Alas­ka 1971) (“It would make mean­ing­less the con­sti­tu­tion­al pro­tec­tion against unrea­son­able search­es . . . if the exer­cise of that right were allowed to become a badge of guilt.”).

33. Bell, 211 A.3d at 775–76 (quot­ing Birch­field, 136 S. Ct. at 2185).

34. Bell, 211 A.3d at 782 (Wecht, J., dis­sent­ing) (quot­ing Birch­field, 136 S. Ct. at 2172).

35. Com­pare Unit­ed States v. Phillips, Nos. 91–10478, 91–10479, 1992 WL 231124, at *3 (9th Cir. Sep. 21, 1992) (hold­ing that motorist had Fourth Amend­ment right to refuse blood draw, thus refusal evi­dence was inad­mis­si­ble), with Unit­ed States v. Rapanos, 115 F.3d 367, 373–74 (6th Cir. 1997) (hold­ing that defen­dant had no right to refuse visu­al inspec­tion of open field, thus refusal evi­dence was admissible).

36. 4 Wayne R. LaFave & David C. Baum, Search & Seizure § 8.2(l), at 27 (5th ed. Supp. 2018).

37. Birch­field, 136 S. Ct. at 2165.

38. Bell, 211 A.3d at 776 (cit­ing South Dako­ta v. Neville, 459 U.S. 553, 560 (1983)).

39. Neville, 459 U.S. at 563 (hold­ing that “the val­ues behind the Fifth Amend­ment are not hin­dered when the state offers a sus­pect the choice of sub­mit­ting to the blood-alco­hol test or hav­ing his refusal used against him.”).

40. See Birch­field, 136 S. Ct. at 2186 (describ­ing North Dakota’s assump­tion that states can com­pel war­rant­less blood draws as “erro­neous”).

41. Neville, 459 U.S. at 559 (cit­ing Schmer­ber, 384 U.S. at 765) (“Schmer­ber, then, clear­ly allows a State to force a per­son sus­pect­ed of dri­ving while intox­i­cat­ed to sub­mit to a blood alco­hol test.”).

42. McNeely, 569 U.S. at 156.

43. Birch­field, 136 S. Ct. at 2185.

44. Id. at 2185–86.

45. Raj­da, 196 A.3d at 1120.

46. Grif­fin v. Cal­i­for­nia, 380 U.S. 609, 614 (1965).

47. Fitzger­ald v. Peo­ple, 394 P.3d 671, 676 (Colo. 2017).

48. Birch­field, 136 S. Ct. at 2186 (empha­sis added).

49. Id. at 2186.

50. Unit­ed States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978).