Keeping Faith with the Fourth Amendment: Why States Should Require a Warrant for Breathalyzer Tests in the Wake of Birchfield v. North Dakota

42 Pages Posted: 20 Jan 2017 Last revised: 1 Feb 2017

See all articles by Catherine Norton

Catherine Norton

University of Mississippi, School of Law

Date Written: January 18, 2017


Over the past few decades, the Supreme Court has been increasingly willing to dispense with the Fourth Amendment’s warrant clause. In Birchfield v. North Dakota, the Supreme Court continued this pattern and created yet another exception to the already deteriorating warrant requirement. In Birchfield, the Court held that a warrant is required for blood tests but that warrantless breathalyzer tests are permissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement. In doing so, the Court reached the wrong conclusion.

This Article is the first to urge states to provide greater Fourth Amendment protections than the low standard set forth in Birchfield. States should not adopt Birchfield and instead should impose a warrant requirement for breathalyzer tests for four reasons.

First, the Majority in Birchfield relied on an arbitrary dividing line between breath and blood tests to justify its reasoning, and traditional search incident to arrest doctrine does not justify a warrantless breathalyzer test. The search incident to arrest exception applies only where it is necessary to either preserve evidence or promote officer safety, and the search incident to arrest may not extend beyond the body’s surface and must be contemporaneous with the arrest.

Second, requiring police to obtain warrants for breathalyzer tests would not impose a sufficiently significant burden on state resources to justify the elimination of the warrant requirement. With new advancements in technology, warrant applications are more expeditious to process, and studies have shown that warrants are more effective in obtaining drunk-driving convictions.

Third, requiring a warrant for breathalyzer tests is practical in light of the exigent circumstances exception to the Fourth Amendment. In the rare case where officers are truly faced with a “now or never” situation, the exigency exception may allow a warrantless breath test. Further, a case-by-case exigency analysis offers better constitutional safeguards.

Fourth, there is a risk of further deterioration of the Fourth Amendment warrant requirement and, consequently, an individual’s right to privacy and personal liberty. The Fourth Amendment is becoming unrecognizable, and it seems as if exceptions to the warrant requirement are becoming the rule. As guardians of our civil liberties, state courts of last resort should reject the Majority’s holding in Birchfield and instead offer greater individual privacy protections under their state constitutions and Fourth Amendment analogs.

Keywords: Birchfield v. North Dakota, Missouri v. McNeely, warrant, breathalyzer, fourth amendment, search, seizure, federalism, civil liberties, privacy, Chimel v. California, Riley v. California, search incident to arrest, exigency, exigent circumstances,

Suggested Citation

Norton, Catherine, Keeping Faith with the Fourth Amendment: Why States Should Require a Warrant for Breathalyzer Tests in the Wake of Birchfield v. North Dakota (January 18, 2017). Available at SSRN: or

Catherine Norton (Contact Author)

University of Mississippi, School of Law ( email )

MS 38677
United States

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