Last week, the Supreme Court held oral arguments on Birchfield v. North Dakota. The case centers on whether a state can make it a crime for a driver suspecting of driving under the influence to refuse to take a breathalyzer test absent a warrant. Naturally, there is a degree to which time is of the essence in measuring Blood Alcohol Content (BAC), as it decreases over time, however the issue proved to be far more complex than one might expect.

Initially, the Justices seemed receptive to an exception for breathalyzer tests, making a variety of arguments in favor. The court noted that is already a “special need” exception for warrantless drug and alcohol testing of airline pilots or train operators.  Given the higher number of deaths caused by drunk driving, drunk drivers could easily fall within that exception.  Furthermore, a breathalyzer is far less invasive than a blood test, diminishing the privacy interest in requiring a warrant. Finally, Justice Kagan suggested that a breathalyzer may fall within another Fourth Amendment exception, the search of an arrestee and his immediate surroundings made incidental to an arrest.  In particular, Justice Kagan noted the search’s role in preserving evidence, and calling a breathalyzer “about as uninvasive as a search can possibly be.”

Despite these strong arguments, one counter-argument did receive a lot of attention. Specifically, several Justices questioned why getting a warrant was a burden, noting that modern technology has reduced the time required to as little as 5 minutes in certain jurisdictions. Even where the wait is longer, a warrant can still often be acquired while taking the driver to the station for the test to be administered. The attorneys’ responses, notably “a lack of resources and manpower,” did not go over well as a justification for creating an exception to a constitutional right.

Surprisingly, the imposition of criminal rather than civil penalties by roughly a dozen states, including respondent North Dakota, did not arise as a significant issue. As Justice Kennedy humorously suggested, given the choice between spending three days in jail or having your license suspended for three years, many people might choose the jail time.