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


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



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.