CALL 205.538.3340

The Law Office of J.D. Lloyd Logo Because There’s Hope After the Trial


After The Trial Blog

The After The Trial blog presents insights on ongoing and recent trials around the state of Alabama, including weekly criminal law round-ups.

US Supreme Court Update - Birchfield v. ND

J.D. Lloyd - Friday, June 24, 2016

Birchfield v. North Dakota

Bernard v. North Dakota

Beylund v. North Dakota


Summary: During a DUI stop, the Fourth Amendment allows police officers to administer a warrantless breath test as a search incident to arrest, but does not allow for warrantless blood tests as a search incident to arrest. As such, because a warrantless blood draw as a search incident to arrest is prohibited by the Fourth Amendment, the State cannot criminalize the refusal to submit to warrantless blood draws as search incident to arrest under implied consent laws.



Every state has some form of “implied consent” law to help law enforcement investigate whether a driver is driving drunk. An “implied consent”  requires a driver to submit to blood-alcohol content (BAC) testing. If you refuse, you could be subject to administrative penalties. In Alabama, you could have your license suspended or be forced to install an Interlock device that tests your breath for alcohol when you start your car.


North Dakota’s implied consent law took things a step further: if you refused to submit to breath or blood testing, you could be prosecuted criminally. At the heart of these DUI cases are three questions: (1) Can police force you to submit to a warrantless breath test as a search incident to a DUI arrest? (2) Can police force you to submit to a warrantless blood draw as a search incident to a DUI arrest? (3) Can a state criminalize the refusal of either under its implied consent law?


Birchfield was convicted after refusing to submit to a warrantless blood test. Birchfield argued that the warrantless search violated the Fourth Amendment and that the Fourth Amendment prohibited criminalizing his refusal. Bernard was prosecuted for refusing to submit to a warrantless breath test and appealed the constitutionality of the search and criminal prosecution for refusing the breath test. Beylund consented to the blood draw after police told him he had to submit. Beylund appealed the voluntariness of his consent to the draw and the ND Supreme Court affirmed.



The Fourth Amendment allows police officers to conduct warrantless searches as incident to a lawful arrest. In the context of a DUI, the Court concluded that law enforcement may order you to submit to a breath test to check BAC as a lawful warrantless search incident to arrest. In the Court’s view, a breath test does not “implicate significant privacy concerns;” however, a blood test does implicate “significant privacy concerns” as it is obviously more intrusive to a suspect’s body. Because of the greater privacy concern and because breath testing is a less-intrusive alternative to check BAC, police cannot conduct a warrantless blood draw as a search incident to arrest. The Court left open the possibility that other warrant exceptions could apply.


The Court then applied this holding to the three cases at hand. For Birchfield, the Court said a warrantless draw of Birchfield’s blood would be unconstitutional, so he could not be prosecuted for refusing an unconstitutional search. For Bernard, the Court concluded that the police did not have to get a warrant to force him to submit to a breath test, so the warrantless search was proper under the Fourth Amendment, and thus, his prosecution was constitutional. For Beylund, the Court remanded the case back to the ND SC to determine whether his consent to the blood draw was voluntary given the inaccuracy of the police officer’s instruction.




Justices Sotomayor and Ginsburg would have held that the Fourth Amendment prohibits both breath tests and blood draws as searches incident to lawful arrest. Justice Thomas, on the other hand, would have held that the Fourth Amendment allows both breath tests and blood draws as searches incident to lawful arrest.



If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.


Recent Posts


cullman alabama brady v maryland Briarwood Presbyterian Church shooting death constitutional law, birchfield v north dakota blount county alabama boaz alabama car accident alabama banville v state drug crimes CCA update peyton pruitt ake v oklahoma huntsville alabama towles v state foley alabama talladega superspeedway mount olive alabama Hillary Clinton, fultondale alabama bomb threat the mannequin challenge endangerment of a child pinson alabama drug smuggling cherokee county alabama albertville alabama Alabaster alabama calhoun county alabama court of criminal appeal releases fake kidnapping, Rule 32 terell corey mcmullin murder Easter bessemer alabama aziz sayyed keith v state brookside alabama abuse street racing Ingmire v State Donald Trump, death penalty eugene lee jones v state dora alabama 28 U.S.C. § 2254 hoax destructive devices robberies West Alabama madison alabama ex parte briseno bailey v us Gardendale Alabama kimberly alabama domestic abuse Pleasant Grove Alabama blountsville alabama criminal justice kenneth eugene billups alfonso morris aiding and abetting avondale alabama moving violations hall v florida campbell v state Wesley Adam Whitworth SCOTUS, felony assaults pelham alabama underage drinking theft of property fort payne alabama drug busts breaking and entering scotus alabama law enforcement agency brendan dassey, steve avery, making a murderer, scotus, netflix abandonment criminal justice reform, abduction homicide rate Eutaw Alabama habeas corpus relief hurst mandamus rainbow city alabama Tracie Todd mccalla alabama capital murder home repair fraud montgomery alabama fairfield alabama, tuscaloosa alabama operation crackdown moore v texas road rage christmas shooting illegal gambling sentencing law and policy blog summaries mountain brook alabama asia mcclain alabama criminal law roundup debit card skimming scams john earle redfearn IV v state utah v strieff Mike Hubbard bernard v north dakota department of justice, theft npr lauderdale county alabama identity theft anniston alabama, morgan county alabama utah supreme court hanceville alabama Dylann Roof crime of passion florence alabama smith v state nicholas hawkins ring v arizona Stephen Breyer minor offenses warrantless blood draws shoplifting Xavier Beasley mike gilotti Marengo County Alabama constitutional violations Samuel Alito decatur alabama burglary drug activity mobile alabama narcotics investigation making a murderer LWOP heflin alabama eric sterling capital offenses economic growth Justice Sotomayor betton v state § 13A-3-23 lethal injection prostitution sting executions public assistance fraud Lucky D Arcade forced isolation Joshua Reese marion county huntsville beylund v north dakota eighth amendment, court of criminal appeals brendan dassey hurst v florida gun control steve avery Fentanyl adger alabama § 13A-3-23(d) immunity hearing Walker County Alabama stanley brent chapman state of arizona morris alabama clarence thomas drug possession, midazolam stoves v state William Pryor eleventh circuit ruling pruitt v state south carolina adnan syed, lamar county church robberies battles v state heritage christian university limestone county alabama strickland v washington sixth amendment mcwilliams v dunn maryland court of special appeals birmingham alabama greene county alabama gadsden alabama drug seizure second amendment tarrant alabama negligent homicide concealed carry animal cruelty attempted murder court systems, oneonta alabama baltimore city circuit court parole edwards v arizona texas trussville alabama death penalty, self defense mulga alabama Sardis Alabama armed robbery Alonzo Ephraim OJ Simpson Made in America unlawful manufacturing Benn v State domestic violence Kay Ivey dekalb county alabama baldwin county alabama fourth amendment criminal mischief Malone v State state of alabama gun rights Shonda Walker, hoover alabama capital punishment US Supreme Court Update operation bullseye Kareem Dacar Gaymon Neil Gorsuch drug trafficking, New York Times embezzlement levins v state sheffield v state illegal gun carry brian fredick lucas christian guitierez shooting Tommy Arthur nathan woods russell calhoun OJ Simpson lethal injection drugs Etowah County Alabama, netflix editorial fraud warrior alabama springville alabama Adamsville alabama ferguson missouri Woods v State sexual assault Jefferson County Alabama st clair county alabama benjamin todd acton social media Thomas Hardiman sarah koenig Glaze v State Guy Terrell Junior dothan alabama kidnapping alabama supreme court arson assault pell city alabama shelby county fraudulent checks legende v state jerry bohannon 2016 election, serial debtor prison department of justice apprendi v new jersey homicide judicial override implied consent



These recoveries and testimonials are not an indication of future results. Every case is different, and regardless of what friends, family, or other individuals may say about what a case is worth, each case must be evaluated on its own facts and circumstances as they apply to the law. The valuation of a case depends on the facts, the injuries, the jurisdiction, the venue, the witnesses, the parties, and the testimony, among  other factors. Furthermore, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Get Free Legal Advice  Contact us for a complimentary legal consultation

I am interested in scheduling a free legal consultation and receiving additional information.

Submitting Form...

The server encountered an error.

Thank you, your  entry has been  received.

© 2017 The Law Office of J.D. Lloyd, LLC. All Rights Reserved. |


As required by Rule 7.2(e), Alabama Rules of Professional Conduct, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.