13 DUI searches and seizures 13 DUI searches and seizures
13.1 Schmerber v. California 13.1 Schmerber v. California
SCHMERBER v. CALIFORNIA.
No. 658.
Argued April 25, 1966.
Decided June 20, 1966.
*758Thomas M. McGurrin argued the cause and filed a brief for petitioner.
Edward L. Davenport argued the cause for respondent. On the brief were Roger Amebergh and Philip E. Grey.
delivered the opinion of the Court.
Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor.1 He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving.2 At the direction of a police officer, a blood sample was then withdrawn from petitioner’s body by a physician at the hospital. *759The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. He contended that in that circumstance the withdrawal of the blood and the admission of the analysis in evidence denied him due process of law under the Fourteenth Amendment, as well as specific guarantees of the Bill of Rights secured against the States by that Amendment: his privilege against self-incrimination under the Fifth Amendment; his right to counsel under the Sixth Amendment; and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment. The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction.3 In view of constitutional decisions since we last considered these issues in Breithaupt v. Abram, 352 U. S. 432—see Escobedo v. Illinois, 378 U. S. 478; Malloy v. Hogan, 378 U. S. 1, and Mapp v. Ohio, 367 U. S. 643—we granted certiorari. 382 U. S. 971. We affirm.
I.
The Due Process Clause Claim.
Breithaupt was also a case in which police officers caused blood to be withdrawn from the driver of an automobile involved in an accident, and in which there was ample justification for the officer’s conclusion that the driver was under the influence of alcohol. There, as here, the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment. *760There, however, the driver was unconscious at the time the blood was withdrawn and hence had no opportunity to object to the procedure. We affirmed the conviction there resulting from the use of the test in evidence, holding that under such circumstances the withdrawal did not offend “that ‘sense of justice’ of which we spoke in Rochin v. California, 342 U. S. 165.” 352 U. S., at 435. Breithaupt thus requires the rejection of petitioner’s due process argument, and nothing in the circumstances of this case4 or in supervening events persuades us that this aspect of Breithaupt should be overruled.
II.
The Privilege Against Self-Incrimination Claim.
Breithaupt summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to “be compelled in any criminal case to be a witness against himself,” citing Twining v. New Jersey, 211 U. S. 78. But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan, 378 U. S. 1, 8. We there held that “[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, *761and to suffer no penalty ... for such silence.” We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner’s privilege. We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature,5 and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.
It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer’s direction to the physician to administer the test over petitioner’s objection constituted compulsion for the purposes of the privilege. The critical question, then, is whether petitioner was thus compelled “to be a witness against himself.” 6
*762If the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated. In Miranda v. Arizona, ante, at 460, the Court said of the interests protected by the privilege: “All these policies point to one overriding thought: the constitutional foundation underlying the priyilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance/ to require the government ‘to shoulder the entire load’. . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt. Compelled submission fails on one view to respect the “inviolability of the human personality.” Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused “by its own independent labors.”
As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest. History *763and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through “the cruel, simple expedient of compelling it from his own mouth. ... In sum, the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” Ibid. The leading case in this Court is Holt v. United States, 218 U. S. 245. There the question was whether evidence was admissible that the accused, prior to trial and over his protest, put on a blouse that fitted him. It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege. Mr. Justice Holmes, speaking for the Court, rejected the argument as “based upon an extravagant extension of the Fifth Amendment,” and went on to say: “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.” 218 U. S., at 252-253.7
It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might *764take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. Boyd v. United States, 116 U. S. 616. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.8 The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.
Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain “physical evidence,” for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege “is as broad as the mischief against which it seeks to guard,” Counselman v. Hitchcock, 142 U. S. 547, 562.
*765In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.9 Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.
III.
The Right to Counsel Claim.
This conclusion also answers petitioner’s claim that, in compelling him to submit to the test in face of the fact that his objection was made on the advice of counsel, *766he was denied his Sixth Amendment right to the assistance of counsel. Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel’s advice, to be left inviolate. No issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented. The limited claim thus made must be rejected.
IV.
The Search and Seizure Claim.
In Breithaupt, as here, it was also contended that the chemical analysis should be excluded from evidence as the product of an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. The Court did not decide whether the extraction of blood in that case was unlawful, but rejected the claim on the basis of Wolf v. Colorado, 338 U. S. 25. That case had held that the Constitution did not require, in state prosecutions for state crimes, the exclusion of evidence obtained in violation of the Fourth Amendment’s provisions. We have since overruled Wolf in that respect, holding in Mapp v. Ohio, 367 U. S. 643, that the exclusionary rule adopted for federal prosecutions in Weeks v. United States, 232 U. S. 383, must also be applied in criminal prosecutions in state courts. The question is squarely presented therefore, whether the chemical anal*767ysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.
The overriding function qf the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf we recognized “[t]he security of one’s privacy against arbitrary intrusion by the police” as being “at the core of the Fourth Amendment” and “basic to a free society.” 338 U. S., at 27. We reaffirmed that broad view of the Amendment’s purpose in applying the federal exclusionary rule to the States in Mapp.
The values protected by the Fourth Amendment thus substantially overlap those the Fifth Amendment helps to protect. History and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. That Amendment expressly provides 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 . . . .” (Emphasis added.) It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of “persons,” and depend antecedently upon seizures of “persons,” within the meaning of that Amendment.
Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers — “houses, papers, and *768effects” — we write on a clean slate. Limitations on the kinds of property which may be seized under warrant,10 as distinct from the procedures for search and the permissible scope of search,11 are not instructive in this context. We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.
In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor.12 The police officer who arrived *769at the scene shortly after the accident smelled liquor on petitioner’s breath, and testified that petitioner’s eyes were “bloodshot, watery, sort of a glassy appearance.” The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner “that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence.”
While early cases suggest that there is an unrestricted “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime,” Weeks v. United States, 232 U. S. 383, 392; People v. Chiagles, 237 N. Y. 193, 142 N. E. 583 (1923) (Cardozo, J.), the mere fact of a lawful arrest does not end our inquiry. The suggestion of these cases apparently rests on two factors — first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused, United States v. Rabinowitz, 339 U. S. 56, 72-73 (Frankfurter, J., dissenting); second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment’s purpose to attempt to confine the search to those objects alone. People v. Chiagles, 237 N. Y., at 197-198, 142 N. E., at 584. Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface. The interests in *770human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search “be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 13-14; see also Aguilar v. Texas, 378 U. S. 108, 110-111. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.
The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence,” Preston v. United States, 376 U. S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had *771to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.
Similarly, we are satisfied that the test chosen to measure petitioner’s blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U. S., at 436, n. 3. Such tests are a commonplace in these days of periodic physical examinations 13 and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the “breathalyzer” test petitioner refused, see n. 9, supra. We need not decide whether such wishes would have to be respected.14
Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most *772rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
Affirmed.
whom Mr. Justice Stewart joins,
concurring.
In joining the Court’s opinion I desire to add the following comment. While agreeing with the Court that the taking of this blood test involved no testimonial compulsion, I would go further and hold that apart from this consideration the case in no way implicates the Fifth Amendment. Cf. my dissenting opinion and that of Mr. Justice White in Miranda v. Arizona, ante, pp. 504, 526.
dissenting.
While there are other important constitutional issues in this case, I believe it is sufficient for me to reiterate my dissenting opinion in Breithaupt v. Abram, 352 U. S. 432, 440, as the basis on which to reverse this conviction.
with whom Mr. Justice Douglas joins,
dissenting.
I would reverse petitioner’s conviction. I agree with the Court that the Fourteenth Amendment made applicable to the States the Fifth Amendment’s provision that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” But I disagree with the Court’s holding that California did not violate petitioner’s constitutional right against self-incrimination when it compelled him, against his will, to allow a doctor to puncture his blood vessels in order to extract a sample of blood and analyze it for alcoholic content, and then used that analysis as evidence to convict petitioner of a crime.
The Court admits that “the State compelled [petitioner] to submit to an attempt to discover evidence [in his blood] that might be [and was] used to prosecute him for a criminal offense.” To reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat. The Court, however, overcomes what had seemed to me to be an insuperable obstacle to its conclusion by holding that
“. . . the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.” (Footnote omitted.)
I cannot agree that this distinction and reasoning of the Court justify denying petitioner his Bill of Rights’ guarantee that he must not be compelled to be a witness against himself.
*774In the first place it seems to me that the compulsory extraction of petitioner’s blood for analysis so that the person who analyzed it could give evidence to convict him had both a “testimonial” and a “communicative nature.” The sole purpose of this project which proved to be successful was to obtain “testimony” from some person to prove that petitioner had alcohol in his blood at the time he was arrested. And the purpose of the project was certainly “communicative” in that the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that petitioner was more or less drunk.
I think it unfortunate that the Court rests so heavily for its very restrictive reading of the Fifth Amendment’s privilege against self-incrimination on the words “testimonial” and “communicative.” These words are not models of clarity and precision as the Court’s rather labored explication shows. Nor can the Court, so far as I know, find precedent in the former opinions of this Court for using these particular words to limit the scope of the Fifth Amendment’s protection. There is a scholarly precedent, however, in the late Professor Wigmore’s learned treatise on evidence. He used “testimonial” which, according to the latest edition of his treatise revised by McNaughton, means “communicative” (8 Wigmore, Evidence § 2263 (McNaughton rev. 1961), p. 378), as a key word in his vigorous and extensive campaign designed to keep the privilege against self-incrimination “within limits the strictest possible.” 8 Wigmore, Evidence § 2251 (3d ed. 1940), p. 318. Though my admiration for Professor Wigmore’s scholarship is great, I regret to see the word he used to narrow the Fifth Amendment’s protection play such a major part in any of this Court’s opinions.
I am happy that the Court itself refuses to follow Professor Wigmore’s implication that the Fifth Amend*775ment goes no further than to bar the use of forced self-incriminating statements coming from a “person’s own lips.” It concedes, as it must so long as Boyd v. United States, 116 U. S. 616, stands, that the Fifth Amendment bars a State from compelling a person to produce papers he has that might tend to incriminate him. It is a strange hierarchy of values that allows the State to extract a human being’s blood to convict him of a crime because of the blood’s content but proscribes compelled production of his lifeless papers. Certainly there could be few papers that would have any more “testimonial” value to convict a man of drunken driving than would an analysis of the alcoholic content of a human being’s blood introduced in evidence at a trial for driving while under the influence of alcohol. In such a situation blood, of course, is not oral testimony given by an accused but it can certainly “communicate” to a court and jury the fact of guilt.
The Court itself, at page 764, expresses its own doubts, if not fears, of its own shadowy distinction between compelling “physical evidence” like blood which it holds does not amount to compelled self-incrimination, and “eliciting responses which are essentially testimonial.” And in explanation of its fears the Court goes on to warn that
“To compel a person to submit to testing [by lie detectors for example] in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege ‘is as broad as the mischief against which it seeks to guard.’ Counselman v. Hitchcock, 142 U. S. 547, 562.”
A basic error in the Court’s holding and opinion is its failure to give the Fifth Amendment’s protection against *776compulsory self-incrimination the broad and liberal construction that Counselman and other opinions of this Court have declared it ought to have.
The liberal construction given the Bill of Rights’ guarantee in Boyd v. United States, supra, which Professor Wigmore criticized severely, see 8 Wigmore, Evidence, § 2264 (3d ed. 1940), pp. 366-373, makes that one among the greatest constitutional decisions of this Court. In that case, at 634-635, all the members of the Court decided that civil suits for penalties and forfeitures incurred for commission of offenses against the law,
“. . . are within the reason of criminal proceedings for all the purposes of . . . that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; . . . within the meaning of the Fifth Amendment to the Constitution . . . *
Obviously the Court’s interpretation was not completely supported by the literal language of the Fifth Amendment. Recognizing this, the Court announced a rule of constitutional interpretation that has been generally followed ever since, particularly in judicial construction of Bill of Rights guarantees:
“A close and literal construction [of constitutional provisions for the security of persons and property] deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroach*777ments thereon.” Boyd v. United States, supra, at 635.
The Court went on to say, at 637, that to require “an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself.” The Court today departs from the teachings of Boyd. Petitioner Schmerber has undoubtedly been compelled to give his blood “to furnish evidence against himself,” yet the Court holds that this is not forbidden by the Fifth Amendment. With all deference I must say that the Court here gives the Bill of Rights’ safeguard against compulsory self-incrimination a construction that would generally be considered too narrow and technical even in the interpretation of an ordinary commercial contract.
The Court apparently, for a reason I cannot understand, finds some comfort for its narrow construction of the Fifth Amendment in this Court’s decision in Miranda v. Arizona, ante, p. 436. I find nothing whatever in the majority opinion in that case which either directly or indirectly supports the holding in this case. In fact I think the interpretive constitutional philosophy used in Miranda, unlike that used in this case, gives the Fifth Amendment’s prohibition against compelled self-incrimination a broad and liberal construction in line with the wholesome admonitions in the Boyd case. The closing sentence in the Fifth Amendment section of the Court’s opinion in the present case is enough by itself, I think, to expose the unsoundness of what the Court here holds. That sentence reads: *778How can it reasonably be doubted that the blood test evidence was not in all respects the actual equivalent of “testimony” taken from petitioner when the result of the test was offered as testimony, was considered by the jury as testimony, and the jury’s verdict of guilt rests in part on that testimony? The refined, subtle reasoning and balancing process used here to narrow the scope of the Bill of Rights’ safeguard against self-incrimination provides a handy instrument for further narrowing of that constitutional protection, as well as others, in the future. Believing with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression, I deeply regret the Court’s holding. For the foregoing reasons as well as those set out in concurring opinions of Black and Douglas, JJ., in Rochin v. California, 342 U. S. 165, 174, 177, and my concurring opinion in Mapp v. Ohio, 367 U. S. 643, 661, and the dissenting opinions in Breithaupt v. Abram, 352 U. S. 432, 440, 442, I dissent from the Court’s holding and opinion in this case.
*777“Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”
dissenting.
I adhere to the views of The Chief Justice in his dissent in Breithaupt v. Abram, 352 U. S. 432, 440, and to the views I stated in my dissent in that case (id., 442) and add only a word.
We are dealing with the right of privacy which, since the Breithaupt case, we have held to be within the penumbra of some specific guarantees of the Bill of Rights. Griswold v. Connecticut, 381 U. S. 479. Thus, the Fifth Amendment marks “a zone of privacy” which the Government may not force a person to surrender. Id., 484. Likewise the Fourth Amendment recognizes that right when it guarantees the right of the people to be *779secure “in their persons.” Ibid. No clearer invasion of this right of privacy can be imagined than forcible bloodletting of the kind involved here.
dissenting.
I would reverse. In my view, petitioner’s privilege against self-incrimination applies. I would add that, under the Due Process Clause, the State, in its role as prosecutor, has no right to extract blood from an accused or anyone else, over his protest. As prosecutor, the State has no right to commit any kind of violence upon the person, or to utilize the results of such a tort, and the extraction of blood, over protest, is an act of violence. Cf. Chief Justice Warren’s dissenting opinion in Breithaupt v. Abram, 352 U. S. 432, 440.
13.2 Missouri v. McNeely 13.2 Missouri v. McNeely
MISSOURI, Petitioner
v.
Tyler G. McNEELY.
No. 11-1425.
Supreme Court of the United States
Argued Jan. 9, 2013.
Decided April 17, 2013.
John N. Koester, Jr., argued, for Petitioner.
Nichole A. Saharsky, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.
Steven R. Shapiro, for Respondent.
John N. Koester, Jr., Counsel of Record, Assistant Prosecuting Attorney, Office of Prosecuting Attorney, Cape Girardeau County, MO, Angel M. Woodruff, Acting Prosecuting Attorney, Jackson, MO, for Petitioner.
Stephen Douglas Bonney, Kansas City, MO, Anthony E. Rothert, Grant R. Doty, St. Louis, MO, Steven R. Shapiro, Counsel of Record, Ezekiel R. Edwards, Brandon J. Buskey, New York, NY, Stephen C. Wilson, Wilson & Mann, L.C., Cape Girardeau, MO, for Respondent.
*144Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, and an opinion with respect to Parts *145II-C and III, in which Justice SCALIA, Justice GINSBURG, and Justice KAGAN join.
In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.
I
While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely's truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely's bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed "a couple of beers" at a bar, App. 20, and he appeared unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of *1557field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course *146and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West 2011). McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely's BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See § 577.012.1.
McNeely was charged with driving while intoxicated (DWI), in violation of § 577.010.1 He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that "[a]s in all cases involving intoxication, [McNeely's] blood alcohol was being metabolized by his liver," there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG-CR01849-01 (Cir. Ct. Cape Girardeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011), id ., at 24a.
*147The Missouri Supreme Court affirmed. 358 S.W.3d 65 (2012) (per curiam ). Recognizing that this Court's decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908,"provide[d] the backdrop" to its analysis, the Missouri Supreme Court held that "Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw." 358 S.W.3d, at 69, 74. The court further concluded that Schmerber "requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case." 358 S.W.3d, at 70. According to the court, exigency depends heavily on the existence of additional " 'special facts,' " such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber . 358 S.W.3d, at 70, 74. Finding that this was "unquestionably a routine DWI case" in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely's Fourth Amendment right to be free from unreasonable searches of his person. Id., at 74-75.
*1558We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.2 See 567 U.S. ----, 133 S.Ct. 98, 183 L.Ed.2d 737 (2012). We now affirm.
II
A
*148The Fourth Amendment provides in relevant part 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, and no Warrants shall issue, but upon probable cause." Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's "most personal and deep-rooted expectations of privacy." Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) ; see also Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).
We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U.S., at 758, 86 S.Ct. 1826. Noting that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful arrest. Id., at 770, 86 S.Ct. 1826. We explained that the importance of requiring authorization by a " 'neutral and detached magistrate' " before allowing a law enforcement officer to "invade another's body in search of evidence of guilt is indisputable and great." Ibid. (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ).
As noted, the warrant requirement is subject to exceptions. "One well-recognized exception," and the one at issue in this case, "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless *149search is objectively reasonable under the Fourth Amendment." Kentucky v. King, 563 U.S. ----, ----, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47-48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam ), engage in "hot pursuit" of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), or *1559enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509-510, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) ; Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because "there is compelling need for official action and no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942.
To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. See Brigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (finding officers' entry into a home to provide emergency assistance "plainly reasonable under the circumstances"); Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (concluding that a warrantless seizure of a person to prevent him from returning to his trailer to destroy hidden contraband was reasonable "[i]n the circumstances of the case before us" due to exigency); Cupp, 412 U.S., at 296, 93 S.Ct. 2000 (holding that a limited warrantless search of a suspect's fingernails to preserve evidence that the suspect was trying to rub off was justified "[o]n the facts of this case"); see also Richards v. Wisconsin, 520 U.S. 385, 391-396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per se exception to the knock-and-announce requirement for felony drug investigations based *150on presumed exigency, and requiring instead evaluation of police conduct "in a particular case"). We apply this "finely tuned approach" to Fourth Amendment reasonableness in this context because the police action at issue lacks "the traditional justification that ... a warrant ... provides." Atwater v. Lago Vista, 532 U.S. 318, 347, n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Absent that established justification, "the fact-specific nature of the reasonableness inquiry," Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), demands that we evaluate each case of alleged exigency based "on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).3
Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U.S., at 758, 86 S.Ct. 1826. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758-759, 86 S.Ct. 1826. After explaining that the warrant requirement applied generally to searches that intrude into the human body, *1560we concluded that the warrantless blood test "in the present case" was nonetheless permissible because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence.' " Id., at 770, 86 S.Ct. 1826 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) ). *151In support of that conclusion, we observed that evidence could have been lost because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." 384 U.S., at 770, 86 S.Ct. 1826. We added that "[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant." Id., at 770-771, 86 S.Ct. 1826."Given these special facts," we found that it was appropriate for the police to act without a warrant. Id., at 771, 86 S.Ct. 1826. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, "involve[d] virtually no risk, trauma, or pain," and was conducted in a reasonable fashion "by a physician in a hospital environment according to accepted medical practices." Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based "on the facts of the present record." Id., at 772, 86 S.Ct. 1826.
Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.
B
The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for Petitioner 28-29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the *152officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.
It is true that as a result of the human body's natural metabolic processes, the alcohol level in a person's blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U.S., at 623, 109 S.Ct. 1402; Schmerber, 384 U.S., at 770-771, 86 S.Ct. 1826. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual's blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 437-441 (L. Kobilinsky ed.2012). Regardless of the exact elimination rate, it is sufficient for our *1561purposes to note that because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. 384 U.S., at 770-771, 86 S.Ct. 1826.
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici . In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) ("We cannot ... excuse the absence of a search warrant without a *153showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative"). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect. Richards, 520 U.S., at 393, 117 S.Ct. 1416.
The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a " 'now or never' " situation. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see Georgia v. Randolph, 547 U.S. 103, 116, n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ; Cupp, 412 U.S., at 296, 93 S.Ct. 2000, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N.W.2d 538, 554 (Minn.2008) (Meyer, J., dissenting). This reality undermines the force of the State's contention, endorsed by the dissent, see post, at 1575 (opinion of THOMAS, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence "is actively being destroyed with every minute that passes." Brief for Petitioner 27. Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would *154be no plausible justification for an exception to the warrant requirement.
The State's proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish *1562probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, the law now allows a federal magistrate judge to consider "information communicated by telephone or other reliable electronic means." Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.4 *155And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations.5
We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential *1563role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where BAC evidence is lost gradually and relatively predictably.6 *156Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State's per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions "to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement." State v. Rodriguez, 2007 UT 15, ¶ 46, 156 P.3d 771, 779.
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
C
In an opinion concurring in part and dissenting in part, THE CHIEF JUSTICE agrees that the State's proposed per se rule is overbroad because "[f]or exigent circumstances to justify a warrantless search ... there must ... be 'no time to secure a warrant.' " Post, at 1572 (quoting Tyler, 436 U.S., at 509, 98 S.Ct. 1942). But THE CHIEF JUSTICE then goes on to suggest his own categorical rule under which a warrantless blood draw is permissible if the officer could not secure a warrant (or reasonably believed he could not secure a warrant) in the *157time it takes to transport the suspect to a hospital or similar facility and obtain medical assistance. Post, at 1572 - 1574. Although we agree that delay inherent to the blood-testing process is relevant to evaluating exigency, see supra, at 1561, we decline to substitute THE CHIEF JUSTICE's modified per se rule for our traditional totality of the circumstances analysis.
For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. Under THE CHIEF JUSTICE's rule, if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule would also distort law enforcement incentives. As with the State's per se rule, THE CHIEF JUSTICE's rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to *1564secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. THE CHIEF JUSTICE correctly observes that "[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road." Post, at 1572, n. 2. But THE CHIEF JUSTICE does not say that roadside blood draws are necessarily unreasonable, and if we accepted THE CHIEF JUSTICE's approach, they would become a more attractive option for the police.
III
The remaining arguments advanced in support of a per se exigency rule are unpersuasive.
*158The State and several of its amici, including the United States, express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. THE CHIEF JUSTICE and the dissent also raise this concern. See post, at 1569, 1573 - 1574 (opinion of ROBERTS, C.J.); post, at 1576 - 1578 (opinion of THOMAS, J.). While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 123-125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (whether an officer has reasonable suspicion to make an investigative stop and to pat down a suspect for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ); Robinette, 519 U.S., at 39-40, 117 S.Ct. 417 (whether valid consent has been given to search); Tennessee v. Garner, 471 U.S. 1, 8-9, 20, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (whether force used to effectuate a seizure, including deadly force, is reasonable). As in those contexts, we see no valid substitute for careful case-by-case evaluation of reasonableness here.7
*159Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves "virtually no *1565risk, trauma, or pain." Schmerber, 384 U.S., at 771, 86 S.Ct. 1826. See also post, at 1575, and n. 1 (opinion of THOMAS, J.).
But the fact that people are "accorded less privacy in ... automobiles because of th[e] compelling governmental need for regulation," California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, 470 U.S., at 759-766, 105 S.Ct. 1611 (surgery to remove a bullet); Rochin v. California, 342 U.S. 165, 172-174, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. See Skinner, 489 U.S., at 618-633, 109 S.Ct. 1402 (upholding warrantless blood testing of railroad employees involved in certain train accidents under the "special needs" doctrine); Schmerber, 384 U.S., at 770-772, 86 S.Ct. 1826. We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.
Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with *160a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA Review).8 To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 1570 - 1571 (opinion of ROBERTS, C.J.); post, at 1576 - 1577 (opinion of THOMAS, J.).
"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53 minutes).
But the general importance of the government's interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances *1566analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced.
As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC
*161evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 1556 (describing Missouri's implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most States allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination).
It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether.9 Among these States, several lift restrictions on *162nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order.10 Cf. Bullcoming v. New *1567Mexico, 564 U.S. ----, ----, 131 S.Ct. 2705, 2710-2711, 180 L.Ed.2d 610 (2011) (noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement's ability to recover BAC evidence. See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36-38 (No. 810852, Oct. 2007).
To be sure, "States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires." Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). But wide-spread *163state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. They also strongly suggest that our ruling today will not "severely hamper effective law enforcement." Garner, 471 U.S., at 19, 105 S.Ct. 1694.
IV
The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was "sure" a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. Id ., at 39, 41-42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id ., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id ., at 39-40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, "a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant." App. to Pet. for Cert. 43a.11
*164The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent circumstances.
*1568358 S.W.3d, at 70, 74-75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect's blood categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i.
Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.
Although the Missouri Supreme Court referred to this case as "unquestionably a routine DWI case," 358 S.W.3d, at 74, the fact that a particular drunk-driving stop is "routine" in the sense that it does not involve " 'special facts,' " ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.
*165Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the sole argument presented to us challenging the Missouri Supreme Court's decision, we affirm its judgment.
* * *
We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.
The judgment of the Missouri Supreme Court is affirmed.
It is so ordered.
Justice KENNEDY, concurring in part.
I join Parts I, II-A, II-B, and IV of the opinion for the Court.
For the reasons stated below this case does not call for the Court to consider in detail the issue discussed in Part II-C and the separate opinion by THE CHIEF JUSTICE.
As to Part III, much that is noted with respect to the statistical and survey data will be of relevance when this *166issue is explored in later cases. The repeated insistence in Part III that every case be determined by its own circumstances is *1569correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence.
States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.
As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.
Chief Justice ROBERTS, with whom Justice BREYER and Justice ALITO join, concurring in part and dissenting in part.
A police officer reading this Court's opinion would have no idea-no idea-what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
In my view, the proper rule is straightforward. Our cases establish that there is an exigent circumstances exception *167to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.
I
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
That language does not state that warrants are required prior to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U.S. ----, ----, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U.S. 757, 767, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
However, "the ultimate touchstone of the Fourth Amendment is 'reasonableness,'
*1570" Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), and thus "the warrant requirement is subject to certain reasonable exceptions," King, 563 U.S., at ----, 131 S.Ct., at 1856. One of those exceptions is known as the "exigent circumstances exception," which "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under *168the Fourth Amendment." Ibid. (internal quotation marks and alterations omitted).
Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham City, supra, at 403, 126 S.Ct. 1943, we held that "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), we held that "[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry 'reasonable.' " And there is a hot pursuit exception to the warrant requirement as well. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), we recognized "the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons." Santana,supra, at 42, 96 S.Ct. 2406. In each of these cases, the requirement that we base our decision on the "totality of the circumstances" has not prevented us from spelling out a general rule for the police to follow.
The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that "law enforcement officers may make a warrantless entry onto private property ... to prevent the imminent destruction of evidence." Brigham City, supra, at 403, 126 S.Ct. 1943 (citing Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion)); see also, e.g., King, supra, at ----, 131 S.Ct., at 1856-1857. For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers' warrantless entry into the defendant's home, with the plurality explaining that the drugs "could be quickly and easily destroyed" or distributed *169d or hidden before a warrant could be obtained at that time of night." 374 U.S., at 40, 42, 83 S.Ct. 1623.
As an overarching principle, we have held that if there is a "compelling need for official action and no time to secure a warrant," the warrant requirement may be excused. Tyler, supra, at 509, 98 S.Ct. 1942. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving.
II
A
The reasonable belief that critical evidence is being destroyed gives rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. Stripp, Forensic *1571and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed.2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception.
And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely, including with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22-23 (citing Mo. Ann. Stat. §§ 558.011, 577.010, 577.023 (West 2011) ).
Evidence of a driver's blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 *170States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a "high BAC," often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x-xviii (No. 811673, Oct. 2012). BAC evidence clearly matters. And when drivers refuse breathalyzers, as McNeely did here, a blood draw becomes necessary to obtain that evidence.
The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra .
McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant's BAC at the time he was driving. See Brief for Respondent 44-46. But that's not good enough. We have indicated that exigent circumstances justify warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U.S., at ---- - ----, 131 S.Ct., at 1857-1858. We have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant's co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless entry.
*171The same approach should govern here. There is a compelling need to search because alcohol-the nearly conclusive evidence of a serious crime-is dissipating from the bloodstream. The need is no less compelling because the police might be able to acquire second-best evidence some other way.1
For exigent circumstances to justify a warrantless search, however, there must also be "no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942; see Schmerber, 384 U.S., at 771, 86 S.Ct. 1826 (warrantless search legal when "there was no time to seek out a magistrate and secure a warrant"). In this respect, obtaining a blood sample from a suspected drunk driver differs from other exigent circumstances cases.
Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away.2 There is a time-consuming obstacle to *172their search, in the form of a trip to the hospital and perhaps a wait to see a medical professional. In this case, for example, approximately 25 minutes elapsed between the time the police stopped McNeely and the time his blood was drawn. App. 36, 38.
As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search-critical evidence is still disappearing. But the fact that the dissipation persists for some time means that the police-although they may not be able to do anything about it right away-may still be able to respond to the ongoing destruction of evidence later on.
There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 1561 - 1563, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. See, e.g., Ala. Rule Crim. Proc. 3.8(b) (2012-2013) ; Alaska Stat. § 12.35.015 (2012) ; Idaho Code §§ 19-4404, 19-4406 (Lexis 2004) ; Minn. Rules Crim. Proc. 36.01 - 36.08 (2010 and Supp.2013) ; Mont.Code Ann. § 46-5-222 (2012); see generally NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 6-32 ( *1573No. 810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police *173officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction.
III
A
In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509, 98 S.Ct. 1942; see also Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("in order to satisfy the 'reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by ... police officer[s] conducting a search or seizure under one of the exceptions to the warrant requirement ... is not that they always be correct, but that they always be reasonable"); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure").
*174Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search is reasonable. We have already held that forced blood draws can be constitutional-that such searches can be reasonable-but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U.S., at 770, 86 S.Ct. 1826 (upholding a warrantless forced blood draw but noting the "importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt" as "indisputable and great"). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified.
At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, or because the destruction occurs continuously over an uncertain period.
And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood drawn *1574from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, simply because he sought a warrant prior to his arrival at the hospital.
B
The Court resists the foregoing, contending that the question presented somehow inhibits such a focused analysis in this case. See ante, at 1567 - 1568. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment "based upon the natural dissipation *175of alcohol in the bloodstream." Pet. for Cert. i. The majority answers "It depends," and so do I. The difference is that the majority offers no additional guidance, merely instructing courts and police officers to consider the totality of the circumstances. I believe more meaningful guidance can be provided about how to handle the typical cases, and nothing about the question presented prohibits affording that guidance.
A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 1563. That is not plausible: Police and prosecutors need warrants in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality's suggestion also overlooks the interest of law enforcement in the protection a warrant provides.
The Court is correct when it says that every case must be considered on its particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.
Schmerber itself provides support for such an analysis. The Court there made much of the fact that "there was no time to seek out a magistrate and secure a warrant." 384 U.S., at 771, 86 S.Ct. 1826. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for the imminent destruction of evidence, when the officers are in a position to do something about it.
* * *
*176Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts.
This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving under the influence of alcohol. Because the body's natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.
I
A
The Fourth Amendment states that "[t]he right of the people to be secure in *1575their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Before a search occurs, "a warrant must generally be secured," Kentucky v. King, 563 U.S. ----, ----, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011), but "this presumption may be overcome in some circumstances because '[t]he ultimate touchstone of the Fourth Amendment is "reasonableness." ' " Ibid. (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ; alteration in original).
The presence of "exigent circumstances" is one such exception to the warrant requirement. Exigency applies when " 'the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.' " 563 U.S., at ----, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ; second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, *177such as entering a home in hot pursuit of a fleeing suspect. 563 U.S., at ----, 131 S.Ct., at 1856-1857. As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in " 'imminent destruction of evidence.' " Ibid. (quoting Brigham City, supra, at 403, 126 S.Ct. 1943).
B
Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. The human liver eliminates alcohol from the bloodstream at a rate of approximately 0.015 percent to 0.020 percent per hour, ante, at 1560, with some heavy drinkers as high as 0.022 percent per hour, Brief for Petitioner 21 (citing medical studies), depending on, among other things, a person's sex, weight, body type, and drinking history. Ante, at 1560 - 1561; Brief for United States as Amicus Curiae 23. The Court has acknowledged this fact since Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ("We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system"). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime "might reasonably [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] 'the destruction of evidence.' " Ibid. (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) ). The Court explained that drawing a person's blood is "a highly effective means of determining the degree to which [he] is under the influence of alcohol" and is a reasonable procedure because blood tests are "commonplace" and "involv[e] virtually no risk, trauma, or pain."1
*178384 U.S., at 771, 86 S.Ct. 1826. The Court, therefore, held that dissipation of alcohol in the blood constitutes an exigency that allows a blood draw without a warrant.
The rapid destruction of evidence acknowledged by the parties, the majority, and Schmerber 's exigency determination *1576occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine. See Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In Cupp, officers questioning a murder suspect observed a spot on the suspect's finger that they believed might be dried blood. Id., at 292, 93 S.Ct. 2000. After the suspect began making obvious efforts to remove the spots from his hands, the officers took samples without obtaining either his consent or a warrant. Id., at 296, 93 S.Ct. 2000. Following a Fourth Amendment challenge to this search, the Court held that the "ready destructibility of the evidence" and the suspect's observed efforts to destroy it "justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails." Ibid.
In this case, a similar exigency is present. Just as the suspect's efforts to destroy "highly evanescent evidence" gave rise to the exigency in Cupp, the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.
A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence *179while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence. See, e.g., 21 U.S.C. § 841(b)(1)(D) (lower penalties for less than 50 kilograms of marijuana); United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov.2012) (drug quantity table tying base offense level to drug amounts). Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.
The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency. Congress has conditioned federal highway grants on states' adoption of laws penalizing the operation of a motor vehicle "with a blood alcohol concentration of 0.08 percent or greater." 23 U.S.C. § 163(a). See also 23 C.F.R. § 1225.1 (2012). All 50 States have acceded to this condition. National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA State Review); Mo. Ann. Stat. § 577.012(1)-(2) (West 2011) (establishing Missouri's 0.08 percent BAC standard). Moreover, as of 2005, 32 States and the District of Columbia imposed additional penalties for BAC levels of 0.15 percent or higher. NHTSA State Review 175. Missouri is one such State. See, e.g., Mo. Stat. Ann. §§ 577.010(3)-(4), 577.012(4)-(5) (suspended sentence unavailable even for first offenders with BAC above 0.15 percent unless they complete drug treatment; mandatory jail time if treatment is not completed). As a result, the level of intoxication *1577directly bears on enforcement of these laws. Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue. *180II
In today's decision, the Court elides the certainty of evidence destruction in drunk-driving cases and focuses primarily on the time necessary for destruction. In doing so, it turns the exigency inquiry into a question about the amount of evidentiary destruction police must permit before they may act without a warrant. That inquiry is inconsistent with the actual exigency at issue: the uncontested destruction of evidence due to metabolization of alcohol. See Part I, supra . Moreover, the Court's facts-and-circumstances analysis will be difficult to administer, a particularly important concern in the Fourth Amendment context.
The Court's judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. Ante, at 1562 (justifying delays in part because "BAC evidence is lost gradually and relatively predictably"); ante, at 1561 (same, quoting Brief for Petitioner 27). But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry.
The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 1561 ("sufficient for our purposes to note that ... significant delay in testing will negatively affect the probative value" (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is obtained will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects' initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. See supra, at 1576 - 1577 (discussing *181laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion.
Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota Supreme Court recognized in rejecting arguments like those adopted by the Court today:
"[T]he officer has no control over how long it would take to travel to a judge or the judge's availability. The officer also may not know the time of the suspect's last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and predict how long the most probative evidence *1578of the defendant's blood-alcohol level would continue to exist before a blood sample was no longer reliable." State v. Shriner, 751 N.W.2d 538, 549 (2008) (footnote omitted).
The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before "too much" evidence is destroyed, for the police lack reliable information concerning the relevant variables.2
*182This case demonstrates the uncertainty officers face with regard to the delay caused by obtaining a warrant. The arresting officer clearly had probable cause to believe respondent was drunk, but there was no way for the officer to quantify the level of intoxication to determine how quickly he needed to act in order to obtain probative evidence. Another officer testified at respondent's trial that it typically took 1 ½; to 2 hours to obtain a drunk-driving warrant at night in Cape Girardeau County, Missouri. See App. 53-54. Respondent submitted an exhibit summarizing six late afternoon and nighttime drunk-driving search warrants that suggests the time may be shorter. Brief for Respondent 56; App. 70. Ultimately this factual tiff is beside the point; the spotty evidence regarding timing itself illustrates the fact that delays in obtaining warrants are unpredictable and potentially lengthy. A rule that requires officers (and ultimately courts) to balance transportation delays, hospital availability, and access to magistrates is not a workable rule for cases where natural processes inevitably destroy the evidence with every passing minute.
The availability of telephonic warrant applications is not an answer to this conundrum. See ante, at 1561 - 1563, and n. 4. For one thing, Missouri still requires written warrant applications and affidavits, Mo. Ann. Stat. §§ 542.276.2(1), 542.276.2.3 (West Supp.2012), rendering the Court's 50-State survey irrelevant to the actual disposition of this case. Ante, at 1555, n. 4. But even if telephonic applications were available in Missouri, the same difficulties would arise. As the majority correctly recognizes, "[w]arrants inevitably take some time *183for police officers or prosecutors to complete and for magistrate judges to review." Ante, at 1562. During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to secure a warrant.
* * *
For the foregoing reasons, I respectfully dissent.
13.3 Birchfield v. North Dakota (2016) 13.3 Birchfield v. North Dakota (2016)
United States Supreme Court
BIRCHFIELD v. NORTH DAKOTA(2016)
No. 14-1468
Argued: April 20, 2016Decided: June 23, 2016
To fight the serious harms inflicted by drunk drivers, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) exceeding a specified level. BAC is typically determined through a direct analysis of a blood sample or by using a machine to measure the amount of alcohol in a person's breath. To help secure drivers' cooperation with such testing, the States have also enacted "implied consent" laws that require drivers to submit to BAC tests. Originally, the penalty for refusing a test was suspension of the motorist's license. Over time, however, States have toughened their drunk-driving laws, imposing harsher penalties on recidivists and drivers with particularly high BAC levels. Because motorists who fear these increased punishments have strong incentives to reject testing, some States, including North Dakota and Minnesota, now make it a crime to refuse to undergo testing.
In these cases, all three petitioners were arrested on drunk-driving charges. The state trooper who arrested petitioner Danny Birchfield advised him of his obligation under North Dakota law to undergo BAC testing and told him, as state law requires, that refusing to submit to a blood test could lead to criminal punishment. Birchfield refused to let his blood be drawn and was charged with a misdemeanor violation of the refusal statute. He entered a conditional guilty plea but argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected his argument, and the State Supreme Court affirmed.
After arresting petitioner William Robert Bernard, Jr., Minnesota police transported him to the station. There, officers read him Minnesota's implied consent advisory, which like North Dakota's informs motorists that it is a crime to refuse to submit to a BAC test. Bernard refused to take a breath test and was charged with test refusal in the first degree. The Minnesota District Court dismissed the charges, concluding that the warrantless breath test was not permitted under the Fourth Amendment. The State Court of Appeals reversed, and the State Supreme Court affirmed.
The officer who arrested petitioner Steve Michael Beylund took him to a nearby hospital. The officer read him North Dakota's implied consent advisory, informing him that test refusal in these circumstances is itself a crime. Beylund agreed to have his blood drawn. The test revealed a BAC level more than three times the legal limit. Beylund's license was suspended for two years after an administrative hearing, and on appeal, the State District Court rejected his argument that his consent to the blood test was coerced by the officer's warning. The State Supreme Court affirmed.
Held:
1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Pp. 13-36.
(a) Taking a blood sample or administering a breath test is a search governed by the Fourth Amendment. See Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 616-617; Schmerber v. California, 384 U. S. 757, 767-768. These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest. This exception applies categorically, rather than on a case-by-case basis. Missouri v. McNeely, 569 U. S. ___, ___, n. 3. Pp. 14-16.
(b) The search-incident-to-arrest doctrine has an ancient pedigree that predates the Nation's founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere "fact of the lawful arrest" justifies "a full search of the person." United States v. Robinson, 414 U. S. 218, 235. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S. ___, the Court considered how to apply the doctrine to searches of an arrestee's cell phone. Because founding era guidance was lacking, the Court determined "whether to exempt [the] search from the warrant requirement 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' " Id., at ___. The same mode of analysis is proper here because the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest. Pp. 16-20.
(c) The analysis begins by considering the impact of breath and blood tests on individual privacy interests. Pp. 20-23.
(1) Breath tests do not "implicat[e] significant privacy concerns." Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests "do not require piercing the skin" and entail "a minimum of inconvenience." Id., at 625. Requiring an arrestee to insert the machine's mouthpiece into his or her mouth and to exhale "deep lung" air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person's cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath a suspect's fingernails, Cupp v. Murphy, 412 U. S. 291. Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government's possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. Pp. 20-22.
(2) The same cannot be said about blood tests. They "require piercing the skin" and extract a part of the subject's body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested. Pp. 22-23.
(d) The analysis next turns to the States' asserted need to obtain BAC readings. Pp. 23-33.
(1) The States and the Federal Government have a "paramount interest . . . in preserving [public highway] safety," Mackey v. Montrym, 443 U. S. 1, 17; and States have a compelling interest in creating "deterrent[s] to drunken driving," a leading cause of traffic fatalities and injuries, id., at 18. Sanctions for refusing to take a BAC test were increased because consequences like license suspension were no longer adequate to persuade the most dangerous offenders to agree to a test that could lead to severe criminal sanctions. By making it a crime to refuse to submit to a BAC test, the laws at issue provide an incentive to cooperate and thus serve a very important function. Pp. 23-25.
(2) As for other ways to combat drunk driving, this Court's decisions establish that an arresting officer is not obligated to obtain a warrant before conducting a search incident to arrest simply because there might be adequate time in the particular circumstances to obtain a warrant. The legality of a search incident to arrest must be judged on the basis of categorical rules. See e.g., Robinson, supra, at 235. McNeely, supra, at ___, distinguished. Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit. And other alternatives--e.g., sobriety checkpoints and ignition interlock systems--are poor substitutes. Pp. 25-30.
(3) Bernard argues that warrantless BAC testing cannot be justified as a search incident to arrest because that doctrine aims to prevent the arrestee from destroying evidence, while the loss of blood alcohol evidence results from the body's metabolism of alcohol, a natural process not controlled by the arrestee. In both instances, however, the State is justifiably concerned that evidence may be lost. The State's general interest in "evidence preservation" or avoiding "the loss of evidence," Riley, supra, at ___, readily encompasses the metabolization of alcohol in the blood. Bernard's view finds no support in Chimel v. California, 395 U. S. 752, 763, Schmerber, 384 U. S., at 769, or McNeely, supra, at ___. Pp. 30-33.
(e) Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable--e.g., where substances other than alcohol impair the driver's ability to operate a car safely, or where the subject is unconscious--nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation. Pp. 33-35.
2. Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. 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. Pp. 36-37.
3. These legal conclusions resolve the three present cases. Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search that he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. Because there appears to be no other basis for a warrantless test of Birchfield's blood, he was threatened with an unlawful search and unlawfully convicted for refusing that search. Bernard was criminally prosecuted for refusing a warrantless breath test. Because that test was a permissible search incident to his arrest for drunk driving, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Beylund submitted to a blood test after police told him that the law required his submission. The North Dakota Supreme Court, which based its conclusion that Beylund's consent was voluntary on the erroneous assumption that the State could compel blood tests, should reevaluate Beylund's consent in light of the partial inaccuracy of the officer's advisory. Pp. 37-38.
No. 14-1468, 2015 ND 6, 858 N. W. 2d 302, reversed and remanded; No. 14-1470, 859 N. W. 2d 762, affirmed; No. 14-1507, 2015 ND 18, 859 N. W. 2d 403, vacated and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J, and Kennedy, Breyer, and Kagan, JJ., joined. Sotomayor, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.
Opinion of the Court
579 U. S. ____ (2016)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
Nos. 14-1468, 14-1470, and 14-1507
DANNY BIRCHFIELD, PETITIONER 14-1468 v. NORTH DAKOTA; WILLIAM ROBERT BERNARD, Jr., PETITIONER 14-1470 v. MINNESOTA; AND STEVE MICHAEL BEYLUND, PETITIONER 14-1507 v. GRANT LEVI, DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION
on writ of certiorari to the supreme court of
north dakota
on writ of certiorari to the supreme court of minnesota
on writ of certiorari to the supreme court of north dakota
[June 23, 2016]
Justice Alito delivered the opinion of the Court.
Drunk drivers take a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver's BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed "implied consent laws." These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State's drunk-driving laws.
In the past, the typical penalty for noncompliance was suspension or revocation of the motorist's license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment's prohibition against unreasonable searches.
I
The problem of drunk driving arose almost as soon as motor vehicles came into use. See J. Jacobs, Drunk Driving: An American Dilemma 57 (1989) (Jacobs). New Jersey enacted what was perhaps the Nation's first drunk-driving law in 1906, 1906 N. J. Laws pp. 186, 196, and other States soon followed. These early laws made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. As a result, prosecutors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech. R. Donigan, Chemical Tests and the Law 2 (1966) (Donigan). As one early case put it, "[t]he effects resulting from the drinking of intoxicating liquors are manifested in various ways, and before any one can be shown to be under the influence of intoxicating liquor it is necessary for some witness to prove that some one or more of these effects were perceptible to him." State v. Noble, 119 Ore. 674, 677, 250 P. 833, 834 (1926).
The 1930's saw a continued rise in the number of motor vehicles on the roads, an end to Prohibition, and not coincidentally an increased interest in combating the growing problem of drunk driving. Jones, Measuring Alcohol in Blood and Breath for Forensic Purposes--A Historical Review, 8 For. Sci. Rev. 13, 20, 33 (1996) (Jones). The American Medical Association and the National Safety Council set up committees to study the problem and ultimately concluded that a driver with a BAC of 0.15% or higher could be presumed to be inebriated. Donigan 21-22. In 1939, Indiana enacted the first law that defined presumptive intoxication based on BAC levels, using the recommended 0.15% standard. 1939 Ind. Acts p. 309; Jones 21. Other States soon followed and then, in response to updated guidance from national organizations, lowered the presumption to a BAC level of 0.10%. Donigan 22-23. Later, States moved away from mere presumptions that defendants might rebut, and adopted laws providing that driving with a 0.10% BAC or higher was per se illegal. Jacobs 69-70.
Enforcement of laws of this type obviously requires the measurement of BAC. One way of doing this is to analyze a sample of a driver's blood directly. A technician with medical training uses a syringe to draw a blood sample from the veins of the subject, who must remain still during the procedure, and then the sample is shipped to a separate laboratory for measurement of its alcohol concentration. See 2 R. Erwin, Defense of Drunk Driving Cases §§17.03-17.04 (3d ed. 2015) (Erwin). Although it is possible for a subject to be forcibly immobilized so that a sample may be drawn, many States prohibit drawing blood from a driver who resists since this practice helps "to avoid violent confrontations." South Dakota v. Neville, 459 U. S. 553, 559 (1983).
The most common and economical method of calculating BAC is by means of a machine that measures the amount of alcohol in a person's breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Refusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the "Drunkometer," was invented and first sold in the 1930's. Note, 30 N. C. L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject's breath alcohol concentration and by extension, BAC, from this figure. Id., at 303-304. A more practical machine, called the "Breathalyzer," came into common use beginning in the 1950's, relying on the same basic scientific principles. 3 Erwin §22.01, at 22-3; Jones 34.
Over time, improved breath test machines were developed. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin §18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Administration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver §7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAC levels, from the very low to the very high. 77 Fed. Reg. 35747 (2012); 2 Erwin §18.07; Jones 38; see also California v. Trombetta, 467 U. S. 479, 489 (1984).
Measurement of BAC based on a breath test requires the cooperation of the person being tested. The subject must take a deep breath and exhale through a mouthpiece that connects to the machine. Berger, How Does it Work? Alcohol Breath Testing, 325 British Medical J. 1403 (2002) (Berger). Typically the test subject must blow air into the device " 'for a period of several seconds' " to produce an adequate breath sample, and the process is sometimes repeated so that analysts can compare multiple samples to ensure the device's accuracy. Trombetta, supra, at 481; see also 2 Erwin §21.04[2][b](L), at 21-14 (describing the Intoxilyzer 4011 device as requiring a 12-second exhalation, although the subject may take a new breath about halfway through).
Modern breath test machines are designed to capture so-called "deep lung" or alveolar air. Trombetta, supra, at 481. Air from the alveolar region of the lungs provides the best basis for determining the test subject's BAC, for it is in that part of the lungs that alcohol vapor and other gases are exchanged between blood and breath. 2 Erwin §18.01[2][a], at 18-7.
When a standard infrared device is used, the whole process takes only a few minutes from start to finish. Berger 1403; 2 Erwin §18A.03[2], at 18A-14. Most evidentiary breath tests do not occur next to the vehicle, at the side of the road, but in a police station, where the controlled environment is especially conducive to reliable testing, or in some cases in the officer's patrol vehicle or in special mobile testing facilities. NHTSA, A. Berning et al., Refusal of Intoxication Testing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008).
Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for States to find a way of securing such cooperation.1 So-called "implied consent" laws were enacted to achieve this result. They provided that cooperation with BAC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. Donigan 177. The first such law was enacted by New York in 1953, and many other States followed suit not long thereafter. Id., at 177-179. In 1962, the Uniform Vehicle Code also included such a provision. Id., at 179. Today, "all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." Missouri v. McNeely, 569 U. S. ___, ___ (2013) (plurality opinion) (slip op., at 18). Suspension or revocation of the motorist's driver's license remains the standard legal consequence of refusal. In addition, evidence of the motorist's refusal is admitted as evidence of likely intoxication in a drunk-driving prosecution. See ibid.
In recent decades, the States and the Federal Government have toughened drunk-driving laws, and those efforts have corresponded to a dramatic decrease in alcohol-related fatalities. As of the early 1980's, the number of annual fatalities averaged 25,000; by 2014, the most recent year for which statistics are available, the number had fallen to below 10,000. Presidential Commission on Drunk Driving 1 (Nov. 1983); NHTSA, Traffic Safety Facts, 2014 Data, Alcohol-Impaired Driving 2 (No. 812231, Dec. 2015) (NHTSA, 2014 Alcohol-Impaired Driving). One legal change has been further lowering the BAC standard from 0.10% to 0.08%. See 1 Erwin, §2.01[1], at 2-3 to 2-4. In addition, many States now impose increased penalties for recidivists and for drivers with a BAC level that exceeds a higher threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving offenders is license suspension and a fine. N. D. Cent. Code Ann. §39-08-01(5)(a)(1) (Supp. 2015); §39-20-04.1(1). But an offender with a BAC of 0.16% or higher must spend at least two days in jail. §39-08-01(5)(a)(2). In addition, the State imposes increased mandatory minimum sentences for drunk-driving recidivists. §§39-08-01(5)(b)-(d).
Many other States have taken a similar approach, but this new structure threatened to undermine the effectiveness of implied consent laws. If the penalty for driving with a greatly elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing, motorists who fear conviction for the more severely punished offenses have an incentive to reject testing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States--2011 Update 1 (No. 811881, Mar. 2014). In North Dakota, the refusal rate for 2011 was a representative 21%. Id., at 2. Minnesota's was below average, at 12%. Ibid.
To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. Minnesota has taken this approach for decades. See 1989 Minn. Laws p. 1658; 1992 Minn. Laws p. 1947. And that may partly explain why its refusal rate now is below the national average. Minnesota's rate is also half the 24% rate reported for 1988, the year before its first criminal refusal law took effect. See Ross, Simon, Cleary, Lewis, & Storkamp, Causes and Consequences of Implied Consent Refusal, 11 Alcohol, Drugs and Driving 57, 69 (1995). North Dakota adopted a similar law, in 2013, after a pair of drunk-driving accidents claimed the lives of an entire young family and another family's 5- and 9-year-old boys.2 2013 N. D. Laws pp. 1087-1088 (codified at §§39-08-01(1)-(3)). The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. NHTSA, Refusal of Intoxication Testing, at 20.
II
A
Petitioner Danny Birchfield accidentally drove his car off a North Dakota highway on October 10, 2013. A state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol, and saw that Birchfield's eyes were bloodshot and watery. Birchfield spoke in slurred speech and struggled to stay steady on his feet. At the trooper's request, Birchfield agreed to take several field sobriety tests and performed poorly on each. He had trouble reciting sections of the alphabet and counting backwards in compliance with the trooper's directions.
Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state law to agree to a BAC test. Birchfield consented to a roadside breath test. The device used for this sort of test often differs from the machines used for breath tests administered in a police station and is intended to provide a preliminary assessment of the driver's BAC. See, e.g., Berger 1403. Because the reliability of these preliminary or screening breath tests varies, many jurisdictions do not permit their numerical results to be admitted in a drunk-driving trial as evidence of a driver's BAC. See generally 3 Erwin §24.03[1]. In North Dakota, results from this type of test are "used only for determining whether or not a further test shall be given." N. D. Cent. Code Ann. §39-20-14(3). In Birchfield's case, the screening test estimated that his BAC was 0.254%, more than three times the legal limit of 0.08%. See §39-08-01(1)(a).
The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda warnings, again advised him of his obligation under North Dakota law to undergo BAC testing, and informed him, as state law requires, see §39-20-01(3)(a), that refusing to take the test would expose him to criminal penalties. In addition to mandatory addiction treatment, sentences range from a mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and imprisonment of at least one year and one day (for serial offenders). §39-08-01(5). These criminal penalties apply to blood, breath, and urine test refusals alike. See §§39-08-01(2), 39-20-01, 39-20-14.
Although faced with the prospect of prosecution under this law, Birchfield refused to let his blood be drawn. Just three months before, Birchfield had received a citation for driving under the influence, and he ultimately pleaded guilty to that offense. State v. Birchfield, Crim. No. 30-2013-CR-00720 (Dist. Ct. Morton Cty., N. D., Jan. 27, 2014). This time he also pleaded guilty--to a misdemeanor violation of the refusal statute--but his plea was a conditional one: while Birchfield admitted refusing the blood test, he argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected this argument and imposed a sentence that accounted for his prior conviction. Cf. §39-08-01(5)(b). The sentence included 30 days in jail (20 of which were suspended and 10 of which had already been served), 1 year of unsupervised probation, $1,750 in fine and fees, and mandatory participation in a sobriety program and in a substance abuse evaluation. App. to Pet. for Cert. in No. 14-1468, p. 20a.
On appeal, the North Dakota Supreme Court affirmed. 2015 ND 6, 858 N. W. 2d 302. The court found support for the test refusal statute in this Court's McNeely plurality opinion, which had spoken favorably about "acceptable 'legal tools' with 'significant consequences' for refusing to submit to testing." 858 N. W. 2d, at 307 (quoting McNeely, 569 U. S., at ___ (slip op., at 18)).
B
On August 5, 2012, Minnesota police received a report of a problem at a South St. Paul boat launch. Three apparently intoxicated men had gotten their truck stuck in the river while attempting to pull their boat out of the water. When police arrived, witnesses informed them that a man in underwear had been driving the truck. That man proved to be William Robert Bernard, Jr., petitioner in the second of these cases. Bernard admitted that he had been drinking but denied driving the truck (though he was holding its keys) and refused to perform any field sobriety tests. After noting that Bernard's breath smelled of alcohol and that his eyes were bloodshot and watery, officers arrested Bernard for driving while impaired.
Back at the police station, officers read Bernard Minnesota's implied consent advisory, which like North Dakota's informs motorists that it is a crime under state law to refuse to submit to a legally required BAC test. See Minn. Stat. §169A.51, subd. 2 (2014). Aside from noncriminal penalties like license revocation, §169A.52, subd. 3, test refusal in Minnesota can result in criminal penalties ranging from no more than 90 days' imprisonment and up to a $1,000 fine for a misdemeanor violation to seven years' imprisonment and a $14,000 fine for repeat offenders, §169A.03, subd. 12; §169A.20, subds. 2-3; §169A.24, subd. 2; §169A.27, subd. 2.
The officers asked Bernard to take a breath test. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. 859 N. W. 2d 762, 765, n. 1 (Minn. 2015) (case below). First-degree refusal carries the highest maximum penalties and a mandatory minimum 3-year prison sentence. §169A.276, subd. 1.
The Minnesota District Court dismissed the charges on the ground that the warrantless breath test demanded of Bernard was not permitted under the Fourth Amendment. App. to Pet. for Cert. in No. 14-1470, pp. 48a, 59a. The Minnesota Court of Appeals reversed, id., at 46a, and the State Supreme Court affirmed that judgment. Based on the longstanding doctrine that authorizes warrantless searches incident to a lawful arrest, the high court concluded that police did not need a warrant to insist on a test of Bernard's breath. 859 N. W. 2d, at 766-772. Two justices dissented. Id., at 774-780 (opinion of Page and Stras, JJ.).
C
A police officer spotted our third petitioner, Steve Michael Beylund, driving the streets of Bowman, North Dakota, on the night of August 10, 2013. The officer saw Beylund try unsuccessfully to turn into a driveway. In the process, Beylund's car nearly hit a stop sign before coming to a stop still partly on the public road. The officer walked up to the car and saw that Beylund had an empty wine glass in the center console next to him. Noticing that Beylund also smelled of alcohol, the officer asked him to step out of the car. As Beylund did so, he struggled to keep his balance.
The officer arrested Beylund for driving while impaired and took him to a nearby hospital. There he read Beylund North Dakota's implied consent advisory, informing him that test refusal in these circumstances is itself a crime. See N. D. Cent. Code Ann. §39-20-01(3)(a). Unlike the other two petitioners in these cases, Beylund agreed to have his blood drawn and analyzed. A nurse took a blood sample, which revealed a blood alcohol concentration of 0.250%, more than three times the legal limit.
Given the test results, Beylund's driver's license was suspended for two years after an administrative hearing. Beylund appealed the hearing officer's decision to a North Dakota District Court, principally arguing that his consent to the blood test was coerced by the officer's warning that refusing to consent would itself be a crime. The District Court rejected this argument, and Beylund again appealed.
The North Dakota Supreme Court affirmed. In response to Beylund's argument that his consent was insufficiently voluntary because of the announced criminal penalties for refusal, the court relied on the fact that its then-recent Birchfield decision had upheld the constitutionality of those penalties. 2015 ND 18, ¶¶14-15, 859 N. W. 2d 403, 408-409. The court also explained that it had found consent offered by a similarly situated motorist to be voluntary, State v. Smith, 2014 ND 152, 849 N. W. 2d 599. In that case, the court emphasized that North Dakota's implied consent advisory was not misleading because it truthfully related the penalties for refusal. Id., at 606.
We granted certiorari in all three cases and consolidated them for argument, see 577 U. S. ___ (2015), in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream.
III
As our summary of the facts and proceedings in these three cases reveals, the cases differ in some respects. Petitioners Birchfield and Beylund were told that they were obligated to submit to a blood test, whereas petitioner Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal. Beylund complied with the demand for a blood sample, and his license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level.
Despite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. See, e.g., Conn. Gen. Stat. §54-33d (2009); Fla. Stat. §933.15 (2015); N. J. Stat. Ann. §33:1-63 (West 1994); 18 U. S. C. §1501; cf. Bumper v. North Carolina, 391 U. S. 543, 550 (1968) ("When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search"). And by the same token, if such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth Amendment.
IV
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Amendment thus prohibits "unreasonable searches," and our cases establish that the taking of a blood sample or the administration of a breath test is a search. See Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 616-617 (1989); Schmerber v. California, 384 U. S. 757, 767-768 (1966). The question, then, is whether the warrantless searches at issue here were reasonable. See Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652 (1995) ("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness' ").
"[T]he text of the Fourth Amendment does not specify when a search warrant must be obtained." Kentucky v. King, 563 U. S. 452, 459 (2011); see also California v. Acevedo, 500 U. S. 565, 581 (1991) (Scalia, J., concurring in judgment) ("What [the text] explicitly states regarding warrants is by way of limitation upon their issuance rather than requirement of their use"). But "this Court has inferred that a warrant must [usually] be secured." King, 563 U. S., at 459. This usual requirement, however, is subject to a number of exceptions. Ibid.
We have previously had occasion to examine whether one such exception--for "exigent circumstances"--applies in drunk-driving investigations. The exigent circumstances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant. Michigan v. Tyler, 436 U. S. 499, 509 (1978). It permits, for instance, the warrantless entry of private property when there is a need to provide urgent aid to those inside, when police are in hot pursuit of a fleeing suspect, and when police fear the imminent destruction of evidence. King, supra, at 460.
In Schmerber v. California, we held that drunk driving may present such an exigency. There, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries. 384 U. S., at 758. The Court concluded that the officer "might reasonably have believed that he was confronted with an emergency" that left no time to seek a warrant because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops." Id., at 770. On the specific facts of that case, where time had already been lost taking the driver to the hospital and investigating the accident, the Court found no Fourth Amendment violation even though the warrantless blood draw took place over the driver's objection. Id., at 770-772.
More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely, 569 U. S. ___, where the State of Missouri was seeking a per se rule that "whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent." Id., at ___ (opinion of the Court) (slip op., at 8). We disagreed, emphasizing that Schmerber had adopted a case-specific analysis depending on "all of the facts and circumstances of the particular case." 569 U. S., at ___ (slip op., at 8). We refused to "depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State." Id., at ___ (slip op., at 9).
While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the McNeely Court noted that other exceptions to the warrant requirement "apply categorically" rather than in a "case-specific" fashion. Id., at ___, n. 3 (slip op., at 7, n. 3). One of these, as the McNeely opinion recognized, is the long-established rule that a warrantless search may be conducted incident to a lawful arrest. See ibid. But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception "at issue in th[e] case," namely, the exception for exigent circumstances. Id., at ___ (slip op., at 5). Neither did any of the Justices who wrote separately. See id., at ___-___ (Kennedy, J., concurring in part) (slip op., at 1-2); id., at ___-___ (Roberts, C. J., concurring in part and dissenting in part) (slip op., at 1-11); id., at ___-___ (Thomas, J., dissenting) (slip op., at 1-8).
In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.
V
A
The search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation's founding, it was recognized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee's person. An 18th-century manual for justices of the peace provides a representative picture of usual practice shortly before the Fourth Amendment's adoption:
"[A] thorough search of the felon is of the utmost consequence to your own safety, and the benefit of the public, as by this means he will be deprived of instruments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will besure [sic] to find some means to get rid of." The Conductor Generalis 117 (J. Parker ed. 1788) (reprinting S. Welch, Observations on the Office of Constable 19 (1754)).
One Fourth Amendment historian has observed that, prior to American independence, "[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well." W. Cuddihy, The Fourth Amendment: Origins and Original Meaning: 602-1791, p. 420 (2009).
No historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. On the contrary, legal scholars agree that "the legitimacy of body searches as an adjunct to the arrest process had been thoroughly established in colonial times, so much so that their constitutionality in 1789 can not be doubted." Id., at 752; see also T. Taylor, Two Studies in Constitutional Interpretation 28-29, 39, 45 (1969); Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 393, 401 (1995).
Few reported cases addressed the legality of such searches before the 19th century, apparently because the point was not much contested. In the 19th century, the subject came up for discussion more often, but court decisions and treatises alike confirmed the searches' broad acceptance. E.g., Holker v. Hennessey, 141 Mo. 527, 539-540, 42 S. W. 1090, 1093 (1897); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519 (1891); Thatcher v. Weeks, 79 Me. 547, 548-549, 11 A. 599 (1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); F. Wharton, Criminal Pleading and Practice §60, p. 45 (8th ed. 1880); 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872).
When this Court first addressed the question, we too confirmed (albeit in dicta) "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime." Weeks v. United States, 232 U. S. 383, 392 (1914). The exception quickly became a fixture in our Fourth Amendment case law. But in the decades that followed, we grappled repeatedly with the question of the authority of arresting officers to search the area surrounding the arrestee, and our decisions reached results that were not easy to reconcile. See, e.g., United States v. Lefkowitz, 285 U. S. 452, 464 (1932) (forbidding "unrestrained" search of room where arrest was made); Harris v. United States, 331 U. S. 145, 149, 152 (1947) (permitting complete search of arrestee's four-room apartment); United States v. Rabinowitz, 339 U. S. 56, 60-65 (1950) (permitting complete search of arrestee's office).
We attempted to clarify the law regarding searches incident to arrest in Chimel v. California, 395 U. S. 752, 754 (1969), a case in which officers had searched the arrestee's entire three-bedroom house. Chimel endorsed a general rule that arresting officers, in order to prevent the arrestee from obtaining a weapon or destroying evidence, could search both "the person arrested" and "the area 'within his immediate control.' " Id., at 763. "[N]o comparable justification," we said, supported "routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." Ibid.
Four years later, in United States v. Robinson, 414 U. S. 218 (1973), we elaborated on Chimel's meaning. We noted that the search-incident-to-arrest rule actually comprises "two distinct propositions": "The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee." 414 U. S., at 224. After a thorough review of the relevant common law history, we repudiated "case-by-case adjudication" of the question whether an arresting officer had the authority to carry out a search of the arrestee's person. Id., at 235. The permissibility of such searches, we held, does not depend on whether a search of a particular arrestee is likely to protect officer safety or evidence: "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect." Ibid. Instead, the mere "fact of the lawful arrest" justifies "a full search of the person." Ibid. In Robinson itself, that meant that police had acted permissibly in searching inside a package of cigarettes found on the man they arrested. Id., at 236.
Our decision two Terms ago in Riley v. California, 573 U. S. ___ (2014), reaffirmed "Robinson's categorical rule" and explained how the rule should be applied in situations that could not have been envisioned when the Fourth Amendment was adopted. Id., at ___ (slip op., at 9). Riley concerned a search of data contained in the memory of a modern cell phone. "Absent more precise guidance from the founding era," the Court wrote, "we generally determine whether to exempt a given type of search from the warrant requirement 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' " Ibid.
Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell phones, but here, as in Riley, the founding era does not provide any definitive guidance as to whether they should be allowed incident to arrest.3 Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine "the degree to which [they] intrud[e] upon an individual's privacy and . . . the degree to which [they are] needed for the promotion of legitimate governmental interests.' " Ibid.
B
We begin by considering the impact of breath and blood tests on individual privacy interests, and we will discuss each type of test in turn.
1
Years ago we said that breath tests do not "implicat[e] significant privacy concerns." Skinner, 489 U. S., at 626. That remains so today.
First, the physical intrusion is almost negligible. Breath tests "do not require piercing the skin" and entail "a minimum of inconvenience." Id., at 625. As Minnesota describes its version of the breath test, the process requires the arrestee to blow continuously for 4 to 15 seconds into a straw-like mouthpiece that is connected by a tube to the test machine. Brief for Respondent in No. 14-1470, p. 20. Independent sources describe other breath test devices in essentially the same terms. See supra, at 5. The effort is no more demanding than blowing up a party balloon.
Petitioner Bernard argues, however, that the process is nevertheless a significant intrusion because the arrestee must insert the mouthpiece of the machine into his or her mouth. Reply Brief in No. 14-1470, p. 9. But there is nothing painful or strange about this requirement. The use of a straw to drink beverages is a common practice and one to which few object.
Nor, contrary to Bernard, is the test a significant intrusion because it "does not capture an ordinary exhalation of the kind that routinely is exposed to the public" but instead " 'requires a sample of "alveolar" (deep lung) air.' " Brief for Petitioner in No. 14-1470, p. 24. Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs. The air that humans exhale is not part of their bodies. Exhalation is a natural process--indeed, one that is necessary for life. Humans cannot hold their breath for more than a few minutes, and all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test. See generally J. Hall, Guyton and Hall Textbook of Medical Physiology 519-520 (13th ed. 2016).
In prior cases, we have upheld warrantless searches involving physical intrusions that were at least as significant as that entailed in the administration of a breath test. Just recently we described the process of collecting a DNA sample by rubbing a swab on the inside of a person's cheek as a "negligible" intrusion. Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 8). We have also upheld scraping underneath a suspect's fingernails to find evidence of a crime, calling that a "very limited intrusion." Cupp v. Murphy, 412 U. S. 291, 296 (1973). A breath test is no more intrusive than either of these procedures.
Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject's breath. In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King. Although the DNA obtained under the law at issue in that case could lawfully be used only for identification purposes, 569 U. S., at ___ (slip op., at 5), the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more. No sample of anything is left in the possession of the police.
Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. See Skinner, supra, at 625 (breath test involves "a minimum of . . . embarrassment"). The act of blowing into a straw is not inherently embarrassing, nor are evidentiary breath tests administered in a manner that causes embarrassment. Again, such tests are normally administered in private at a police station, in a patrol car, or in a mobile testing facility, out of public view. See supra, at 5. Moreover, once placed under arrest, the individual's expectation of privacy is necessarily diminished. Maryland v. King, supra, at ___-___ (slip op., at 24-25).
For all these reasons, we reiterate what we said in Skinner: A breath test does not "implicat[e] significant privacy concerns." 489 U. S., at 626.
2
Blood tests are a different matter. They "require piercing the skin" and extract a part of the subject's body. Skinner, supra, at 625; see also McNeely, 569 U. S., at ___ (opinion of the Court) (slip op., at 4) (blood draws are "a compelled physical intrusion beneath [the defendant's] skin and into his veins"); id., at ___ (opinion of Roberts, C. J.) (slip op., at 9) (blood draws are "significant bodily intrusions"). And while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. See id., at ___ (plurality opinion) (slip op., at 16) (citing Schmerber, 384 U. S., at 771). Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. Perhaps that is why many States' implied consent laws, including Minnesota's, specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take. See 1 Erwin §4.06; Minn. Stat. §169A.51, subd. 3.
In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.
C
Having assessed the impact of breath and blood testing on privacy interests, we now look to the States' asserted need to obtain BAC readings for persons arrested for drunk driving.
1
The States and the Federal Government have a "paramount interest . . . in preserving the safety of . . . public highways." Mackey v. Montrym, 443 U. S. 1, 17 (1979). Although the number of deaths and injuries caused by motor vehicle accidents has declined over the years, the statistics are still staggering. See, e.g., NHTSA, Traffic Safety Facts 1995--Overview 2 (No. 95F7, 1995) (47,087 fatalities, 3,416,000 injuries in 1988); NHTSA, Traffic Safety Facts, 2014 Data, Summary of Motor Vehicle Crashes 1 (No. 812263, May 2016) (Table 1) (29,989 fatalities, 1,648,000 injuries in 2014).
Alcohol consumption is a leading cause of traffic fatalities and injuries. During the past decade, annual fatalities in drunk-driving accidents ranged from 13,582 deaths in 2005 to 9,865 deaths in 2011. NHTSA, 2014 Alcohol-Impaired Driving 2. The most recent data report a total of 9,967 such fatalities in 2014--on average, one death every 53 minutes. Id., at 1. Our cases have long recognized the "carnage" and "slaughter" caused by drunk drivers. Neville, 459 U. S., at 558; Breithaupt v. Abram, 352 U. S. 432, 439 (1957).
Justice Sotomayor's partial dissent suggests that States' interests in fighting drunk driving are satisfied once suspected drunk drivers are arrested, since such arrests take intoxicated drivers off the roads where they might do harm. See post, at 9 (opinion concurring in part and dissenting in part). But of course States are not solely concerned with neutralizing the threat posed by a drunk driver who has already gotten behind the wheel. They also have a compelling interest in creating effective "deterrent[s] to drunken driving" so such individuals make responsible decisions and do not become a threat to others in the first place. Mackey, supra, at 18.
To deter potential drunk drivers and thereby reduce alcohol-related injuries, the States and the Federal Government have taken the series of steps that we recounted earlier. See supra, at 2-8. We briefly recapitulate. After pegging inebriation to a specific level of blood alcohol, States passed implied consent laws to induce motorists to submit to BAC testing. While these laws originally provided that refusal to submit could result in the loss of the privilege of driving and the use of evidence of refusal in a drunk-driving prosecution, more recently States and the Federal Government have concluded that these consequences are insufficient. In particular, license suspension alone is unlikely to persuade the most dangerous offenders, such as those who drive with a BAC significantly above the current limit of 0.08% and recidivists, to agree to a test that would lead to severe criminal sanctions. NHTSA, Implied Consent Refusal Impact, pp. xvii, 83 (No. 807765, Sept. 1991); NHTSA, Use of Warrants for Breath Test Refusal 1 (No. 810852, Oct. 2007). The laws at issue in the present cases--which make it a crime to refuse to submit to a BAC test--are designed to provide an incentive to cooperate in such cases, and we conclude that they serve a very important function.
2
Petitioners and Justice Sotomayor contend that the States and the Federal Government could combat drunk driving in other ways that do not have the same impact on personal privacy. Their arguments are unconvincing.
The chief argument on this score is that an officer making an arrest for drunk driving should not be allowed to administer a BAC test unless the officer procures a search warrant or could not do so in time to obtain usable test results. The governmental interest in warrantless breath testing, Justice Sotomayor claims, turns on " 'whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.' " Post, at 3-4 (quoting Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 533 (1967)).
This argument contravenes our decisions holding that the legality of a search incident to arrest must be judged on the basis of categorical rules. In Robinson, for example, no one claimed that the object of the search, a package of cigarettes, presented any danger to the arresting officer or was at risk of being destroyed in the time that it would have taken to secure a search warrant. The Court nevertheless upheld the constitutionality of a warrantless search of the package, concluding that a categorical rule was needed to give police adequate guidance: "A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search." 414 U. S., at 235; cf. Riley, 573 U. S., at ___ (slip op., at 22) ("If police are to have workable rules, the balancing of the competing interests must in large part be done on a categorical basis--not in an ad hoc, case-by-case fashion by individual police officers" (brackets, ellipsis, and internal quotation marks omitted)).
It is not surprising, then, that the language Justice Sotomayor quotes to justify her approach comes not from our search-incident-to-arrest case law, but a case that addressed routine home searches for possible housing code violations. See Camara, 387 U. S., at 526. Camara's express concern in the passage that the dissent quotes was "whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement." Id., at 533 (emphasis added). Camara did not explain how to apply an existing exception, let alone the long-established exception for searches incident to a lawful arrest, whose applicability, as Robinson and Riley make plain, has never turned on case-specific variables such as how quickly the officer will be able to obtain a warrant in the particular circumstances he faces.
In advocating the case-by-case approach, petitioners and Justice Sotomayor cite language in our McNeely opinion. See Brief for Petitioner in No. 14-1468, p. 14; post, at 12. But McNeely concerned an exception to the warrant requirement--for exigent circumstances--that always requires case-by-case determinations. That was the basis for our decision in that case. 569 U. S., at ___ (slip op., at 9). Although Justice Sotomayor contends that the categorical search-incident-to-arrest doctrine and case-by-case exigent circumstances doctrine are actually parts of a single framework, post, at 6-7, and n. 3, in McNeely the Court was careful to note that the decision did not address any other exceptions to the warrant requirement, 569 U. S., at ___, n. 3 (slip op., at 7, n. 3).
Petitioners and Justice Sotomayor next suggest that requiring a warrant for BAC testing in every case in which a motorist is arrested for drunk driving would not impose any great burden on the police or the courts. But of course the same argument could be made about searching through objects found on the arrestee's possession, which our cases permit even in the absence of a warrant. What about the cigarette package in Robinson? What if a motorist arrested for drunk driving has a flask in his pocket? What if a motorist arrested for driving while under the influence of marijuana has what appears to be a marijuana cigarette on his person? What about an unmarked bottle of pills?
If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped. And even if we arbitrarily singled out BAC tests incident to arrest for this special treatment, as it appears the dissent would do, see post, at 12-14, the impact on the courts would be considerable. The number of arrests every year for driving under the influence is enormous--more than 1.1 million in 2014. FBI, Uniform Crime Report, Crime in the United States, 2014, Arrests 2 (Fall 2015). Particularly in sparsely populated areas, it would be no small task for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, see, e.g., Fed. Rule Crim. Proc. 41(b); N. D. Rule Crim. Proc. 41(a) (2016-2017), and in rural areas, some districts may have only a small number of judicial officers.
North Dakota, for instance, has only 51 state district judges spread across eight judicial districts.4 Those judges are assisted by 31 magistrates, and there are no magistrates in 20 of the State's 53 counties.5 At any given location in the State, then, relatively few state officials have authority to issue search warrants.6 Yet the State, with a population of roughly 740,000, sees nearly 7,000 drunk-driving arrests each year. Office of North Dakota Attorney General, Crime in North Dakota, 2014, pp. 5, 47 (2015). With a small number of judicial officers authorized to issue warrants in some parts of the State, the burden of fielding BAC warrant applications 24 hours per day, 365 days of the year would not be the light burden that petitioners and Justice Sotomayor suggest.
In light of this burden and our prior search-incident-to-arrest precedents, petitioners would at a minimum have to show some special need for warrants for BAC testing. It is therefore appropriate to consider the benefits that such applications would provide. Search warrants protect privacy in two main ways. First, they ensure that a search is not carried out unless a neutral magistrate makes an independent determination that there is probable cause to believe that evidence will be found. See, e.g., Riley, 573 U. S., at ___ (slip op., at 5). Second, if the magistrate finds probable cause, the warrant limits the intrusion on privacy by specifying the scope of the search--that is, the area that can be searched and the items that can be sought. United States v. Chadwick, 433 U. S. 1, 9 (1977), abrogated on other grounds, Acevedo, 500 U. S. 565.
How well would these functions be performed by the warrant applications that petitioners propose? In order to persuade a magistrate that there is probable cause for a search warrant, the officer would typically recite the same facts that led the officer to find that there was probable cause for arrest, namely, that there is probable cause to believe that a BAC test will reveal that the motorist's blood alcohol level is over the limit. As these three cases suggest, see Part II, supra, the facts that establish probable cause are largely the same from one drunk-driving stop to the next and consist largely of the officer's own characterization of his or her observations--for example, that there was a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on. A magistrate would be in a poor position to challenge such characterizations.
As for the second function served by search warrants--delineating the scope of a search--the warrants in question here would not serve that function at all. In every case the scope of the warrant would simply be a BAC test of the arrestee. Cf. Skinner, 489 U. S., at 622 ("[I]n light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate"). For these reasons, requiring the police to obtain a warrant in every case would impose a substantial burden but no commensurate benefit.
Petitioners advance other alternatives to warrantless BAC tests incident to arrest, but these are poor substitutes. Relying on a recent NHTSA report, petitioner Birchfield identifies 19 strategies that he claims would be at least as effective as implied consent laws, including high-visibility sobriety checkpoints, installing ignition interlocks on repeat offenders' cars that would disable their operation when the driver's breath reveals a sufficiently high alcohol concentration, and alcohol treatment programs. Brief for Petitioner in No. 14-1468, at 44-45. But Birchfield ignores the fact that the cited report describes many of these measures, such as checkpoints, as significantly more costly than test refusal penalties. NHTSA, A. Goodwin et al., Countermeasures That Work: A Highway Safety Countermeasures Guide for State Highway Safety Offices, p. 1-7 (No. 811727, 7th ed. 2013). Others, such as ignition interlocks, target only a segment of the drunk-driver population. And still others, such as treatment programs, are already in widespread use, see id., at 1-8, including in North Dakota and Minnesota. Moreover, the same NHTSA report, in line with the agency's guidance elsewhere, stresses that BAC test refusal penalties would be more effective if the consequences for refusal were made more severe, including through the addition of criminal penalties. Id., at 1-16 to 1-17.
3
Petitioner Bernard objects to the whole idea of analyzing breath and blood tests as searches incident to arrest. That doctrine, he argues, does not protect the sort of governmental interests that warrantless breath and blood tests serve. On his reading, this Court's precedents permit a search of an arrestee solely to prevent the arrestee from obtaining a weapon or taking steps to destroy evidence. See Reply Brief in No. 14-1470, at 4-6. In Chimel, for example, the Court derived its limitation for the scope of the permitted search--"the area into which an arrestee might reach"--from the principle that officers may reasonably search "the area from within which he might gain possession of a weapon or destructible evidence." 395 U. S., at 763. Stopping an arrestee from destroying evidence, Bernard argues, is critically different from preventing the loss of blood alcohol evidence as the result of the body's metabolism of alcohol, a natural process over which the arrestee has little control. Reply Brief in No. 14-1470, at 5-6.
The distinction that Bernard draws between an arrestee's active destruction of evidence and the loss of evidence due to a natural process makes little sense. In both situations the State is justifiably concerned that evidence may be lost, and Bernard does not explain why the cause of the loss should be dispositive. And in fact many of this Court's post-Chimel cases have recognized the State's concern, not just in avoiding an arrestee's intentional destruction of evidence, but in "evidence preservation" or avoiding "the loss of evidence" more generally. Riley, 573 U. S., at ___ (slip op., at 8); see also Robinson, 414 U. S., at 234 ("the need to preserve evidence on his person"); Knowles v. Iowa, 525 U. S. 113, 118-119 (1998) ("the need to discover and preserve evidence;" "the concern for destruction or loss of evidence" (emphasis added)); Virginia v. Moore, 553 U. S. 164, 176 (2008) (the need to "safeguard evidence"). This concern for preserving evidence or preventing its loss readily encompasses the inevitable metabolization of alcohol in the blood.
Nor is there any reason to suspect that Chimel's use of the word "destruction," 395 U. S., at 763, was a deliberate decision to rule out evidence loss that is mostly beyond the arrestee's control. The case did not involve any evidence that was subject to dissipation through natural processes, and there is no sign in the opinion that such a situation was on the Court's mind.
Bernard attempts to derive more concrete support for his position from Schmerber. In that case, the Court stated that the "destruction of evidence under the direct control of the accused" is a danger that is not present "with respect to searches involving intrusions beyond the body's surface." 384 U. S., at 769. Bernard reads this to mean that an arrestee cannot be required "to take a chemical test" incident to arrest, Brief for Petitioner in No. 14-1470, at 19, but by using the term "chemical test," Bernard obscures the fact that Schmerber's passage was addressed to the type of test at issue in that case, namely a blood test. The Court described blood tests as "searches involving intrusions beyond the body's surface," and it saw these searches as implicating important "interests in human dignity and privacy," 384 U. S., at 769-770. Although the Court appreciated as well that blood tests "involv[e] virtually no risk, trauma, or pain," id., at 771, its point was that such searches still impinge on far more sensitive interests than the typical search of the person of an arrestee. Cf. supra, at 22-23. But breath tests, unlike blood tests, "are not invasive of the body," Skinner, 489 U. S., at 626 (emphasis added), and therefore the Court's comments in Schmerber are inapposite when it comes to the type of test Bernard was asked to take. Schmerber did not involve a breath test, and on the question of breath tests' legality, Schmerber said nothing.
Finally, Bernard supports his distinction using a passage from the McNeely opinion, which distinguishes between "easily disposable evidence" over "which the suspect has control" and evidence, like blood alcohol evidence, that is lost through a natural process "in a gradual and relatively predictable manner." 569 U. S., at ___ (slip op., at 10); see Reply Brief in No. 14-1470, at 5-6. Bernard fails to note the issue that this paragraph addressed. McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, and as previously discussed, that exception has always been understood to involve an evaluation of the particular facts of each case. Here, by contrast, we are concerned with the search-incident-to-arrest exception, and as we made clear in Robinson and repeated in McNeely itself, this authority is categorical. It does not depend on an evaluation of the threat to officer safety or the threat of evidence loss in a particular case.7
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.
We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
Neither respondents nor their amici dispute the effectiveness of breath tests in measuring BAC. Breath tests have been in common use for many years. Their results are admissible in court and are widely credited by juries, and respondents do not dispute their accuracy or utility. What, then, is the justification for warrantless blood tests?
One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver's ability to operate a car safely. See Brief for New Jersey et al. as Amici Curiae 9; Brief for United States as Amicus Curiae 6. A breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not. See McNeely, 569 U. S., at ___-___ (slip op., at 22-23).
A blood test also requires less driver participation than a breath test. In order for a technician to take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by being immobilized. Thus, it is possible to extract a blood sample from a subject who forcibly resists, but many States reasonably prefer not to take this step. See, e.g., Neville, 459 U. S., at 559-560. North Dakota, for example, tells us that it generally opposes this practice because of the risk of dangerous altercations between police officers and arrestees in rural areas where the arresting officer may not have backup. Brief for Respondent in No. 14-1468, p. 29. Under current North Dakota law, only in cases involving an accident that results in death or serious injury may blood be taken from arrestees who resist. Compare N. D. Cent. Code Ann. §§39-20-04(1), 39-20-01, with §39-20-01.1.
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.
A breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing, e.g., Andrews v. Turner, 52 Ohio St. 2d 31, 36-37, 368 N. E. 2d 1253, 1256-1257 (1977); In re Kunneman, 501 P. 2d 910, 910-911 (Okla. Civ. App. 1972); see generally 1 Erwin §4.08[2] (collecting cases), and it may be prosecuted as such. And again, a warrant for a blood test may be sought.
Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.8
VI
Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents' alternative argument that such tests are justified based on the driver's legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents, e.g., Schneckloth v. Bustamonte, 412 U. S. 218, 219 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. Florida v. Jardines, 569 U. S. 1, ___-___ (2013) (slip op., at 6-7); Marshall v. Barlow's, Inc., 436 U. S. 307, 313 (1978). Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ___ (plurality opinion) (slip op., at 18); Neville, supra, at 560. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. 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.
Respondents and their amici all but concede this point. North Dakota emphasizes that its law makes refusal a misdemeanor and suggests that laws punishing refusal more severely would present a different issue. Brief for Respondent in No. 14-1468, at 33-34. Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions that are "reasonable" in that they have a "nexus" to the privilege of driving and entail penalties that are proportional to severity of the violation. Brief for United States as Amicus Curiae 21-27. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since reasonableness is always the touchstone of Fourth Amendment analysis, see Brigham City v. Stuart, 547 U. S. 398, 403 (2006). And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.
VII
Our remaining task is to apply our legal conclusions to the three cases before us.
Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State's interests in acquiring evidence to enforce its drunk-driving laws against Birchfield. And North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified a warrantless search. Cf. McNeely, 569 U. S., at ___-___ (slip op., at 20-23). Unable to see any other basis on which to justify a warrantless test of Birchfield's blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.
Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard's arrest for drunk driving, an arrest whose legality Bernard has not contested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.
Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund's consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be "determined from the totality of all the circumstances," Schneckloth, supra, at 227, we leave it to the state court on remand to reevaluate Beylund's consent given the partial inaccuracy of the officer's advisory.9
We accordingly reverse the judgment of the North Dakota Supreme Court in No. 14-1468 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the Minnesota Supreme Court in No. 14-1470. And we vacate the judgment of the North Dakota Supreme Court in No. 14-1507 and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
Opinion of Sotomayor, J.
579 U. S. ____ (2016)
Nos. 14-1468, 14-1470, and 14-1507
DANNY BIRCHFIELD, PETITIONER 14-1468 v. NORTH DAKOTA; WILLIAM ROBERT BERNARD, Jr., PETITIONER 14-1470 v. MINNESOTA; AND STEVE MICHAEL BEYLUND, PETITIONER 14-1507 v. GRANT LEVI, DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION
on writ of certiorari to the supreme court of north dakota
on writ of certiorari to the supreme court of minnesota
on writ of certiorari to the supreme court of north dakota
[June 23, 2016]
Justice Sotomayor, with whom Justice Ginsburg joins, concurring in part and dissenting in part.
The Court today considers three consolidated cases. I join the majority's disposition of Birchfield v. North Da-kota, No. 14-1468, and Beylund v. Levi, No. 14-1507, in which the Court holds that the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement does not permit warrantless blood tests. But I dissent from the Court's disposition of Bernard v. Minnesota, No. 14-1470, in which the Court holds that the same exception permits warrantless breath tests. Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver's alcohol level, the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case.1
I
A
As the Court recognizes, the proper disposition of this case turns on whether the Fourth Amendment guarantees a right not to be subjected to a warrantless breath test after being arrested. The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The "ultimate touchstone of the Fourth Amendment is 'reasonableness.' " Brigham City v. Stuart, 547 U. S. 398, 403 (2006). A citizen's Fourth Amendment right to be free from "unreasonable searches" does not disappear upon arrest. Police officers may want to conduct a range of searches after placing a person under arrest. They may want to pat the arrestee down, search her pockets and purse, peek inside her wallet, scroll through her cellphone, examine her car or dwelling, swab her cheeks, or take blood and breath samples to determine her level of intoxication. But an officer is not authorized to conduct all of these searches simply because he has arrested someone. Each search must be separately analyzed to determine its reasonableness.
Both before and after a person has been arrested, warrants are the usual safeguard against unreasonable searches because they guarantee that the search is not a "random or arbitrary ac[t] of government agents," but is instead "narrowly limited in its objectives and scope." Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 622 (1989). Warrants provide the "detached scrutiny of a neutral magistrate, and thus ensur[e] an objective determination whether an intrusion is justified." Ibid. And they give life to our instruction that the Fourth Amendment "is designed to prevent, not simply to redress, unlawful police action." Steagald v. United States, 451 U. S. 204, 215 (1981) (internal quotation marks omitted).
Because securing a warrant before a search is the rule of reasonableness, the warrant requirement is "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U. S. 347, 357 (1967). To determine whether to "exempt a given type of search from the warrant requirement," this Court traditionally "assess[es], on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 9) (internal quotation marks omitted). In weighing "whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question," but, more specifically, "whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 533 (1967); see also Almeida-Sanchez v. United States, 413 U. S. 266, 282-283 (1973) (Powell, J., concurring) (noting that in areas ranging from building inspections to automobile searches, the Court's "general approach to exceptions to the warrant requirement" is to determine whether a " 'warrant system can be constructed that would be feasible and meaningful' "); United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 315 (1972) ("We must . . . ask whether a warrant requirement would unduly frustrate the [governmental interest]").2
Applying these principles in past cases, this Court has recognized two kinds of exceptions to the warrant requirement that are implicated here: (1) case-by-case exceptions, where the particularities of an individual case justify a warrantless search in that instance, but not others; and (2) categorical exceptions, where the commonalities among a class of cases justify dispensing with the warrant requirement for all of those cases, regardless of their individual circumstances.
Relevant here, the Court allows warrantless searches on a case-by-case basis where the "exigencies" of the particular case "make the needs of law enforcement so compelling that a warrantless search is objectively reasonable" in that instance. Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 5) (quoting Kentucky v. King, 563 U. S. 452, 460 (2011)). The defining feature of the exigent circumstances exception is that the need for the search becomes clear only after "all of the facts and circumstances of the particular case" have been considered in light of the "totality of the circumstances." 569 U. S., at ___ (slip op., at 8). Exigencies can include officers' "need to provide emer-gency assistance to an occupant of a home, engage in 'hot pursuit' of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause." Id., at ___ (slip op., at 5) (citations omitted).
Exigencies can also arise in efforts to measure a driver's blood alcohol level. In Schmerber v. California, 384 U. S. 757 (1966), for instance, a man sustained injuries in a car accident and was transported to the hospital. While there, a police officer arrested him for drunk driving and ordered a warrantless blood test to measure his blood alcohol content. This Court noted that although the warrant requirement generally applies to postarrest blood tests, a warrantless search was justified in that case because several hours had passed while the police investigated the scene of the crime and Schmerber was taken to the hospital, precluding a timely securing of a warrant. Id., at 770-771.
This Court also recognizes some forms of searches in which the governmental interest will "categorically" outweigh the person's privacy interest in virtually any circumstance in which the search is conducted. Relevant here is the search-incident-to-arrest exception. That exception allows officers to conduct a limited postarrest search without a warrant to combat risks that could arise in any arrest situation before a warrant could be obtained: " 'to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape' " and to " 'seize any evidence on the arrestee's person in order to prevent its concealment or destruction.' " Riley, 573 U. S., at ___ (slip op., at 6) (quoting Chimel v. California, 395 U. S. 752, 763 (1969)). That rule applies "categorical[ly]" to all arrests because the need for the warrantless search arises from the very "fact of the lawful arrest," not from the reason for arrest or the circumstances surrounding it. United States v. Robinson, 414 U. S. 218, 225, 235 (1973).
Given these different kinds of exceptions to the warrant requirement, if some form of exception is necessary for a particular kind of postarrest search, the next step is to ask whether the governmental need to conduct a warrantless search arises from "threats" that " 'lurk in all custodial arrests' " and therefore "justif[ies] dispensing with the warrant requirement across the board," or, instead, whether the threats "may be implicated in a particular way in a particular case" and are therefore "better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances." Riley, 573 U. S., at ___ (slip op., at 11-12) (alterations and internal quotation marks omitted).
To condense these doctrinal considerations into a straightforward rule, the question is whether, in light of the individual's privacy, a "legitimate governmental interest" justifies warrantless searches--and, if so, whether that governmental interest is adequately addressed by a case-by-case exception or requires by its nature a categorical exception to the warrant requirement.
B
This Court has twice applied this framework in recent terms. Riley v. California, 573 U. S. ___,addressed whether, after placing a person under arrest, a police officer may conduct a warrantless search of his cell phone data. California asked for a categorical rule, but the Court rejected that request, concluding that cell phones do not present the generic arrest-related harms that have long justified the search-incident-to-arrest exception. The Court found that phone data posed neither a danger to officer safety nor a risk of evidence destruction once the physical phone was secured. Id., at ___-___ (slip op., at 10-15). The Court nevertheless acknowledged that the exigent circumstances exception might be available in a "now or never situation." Id., at ___ (slip op., at 15) (internal quotation marks omitted). It emphasized that "[i]n light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address" the rare needs that would require an on-the-spot search. Id., at ___ (slip op., at 26).
Similarly, Missouri v. McNeely, 569 U. S. ___,applied this doctrinal analysis to a case involving police efforts to measure drivers' blood alcohol levels. In that case, Missouri argued that the natural dissipation of alcohol in a person's blood justified a per se exigent circumstances exception to the warrant requirement--in essence, a new kind of categorical exception. The Court recognized that exigencies could exist, like in Schmerber, that would jus-tify warrantless searches. 569 U. S., at ___ (slip op., at 9). But it also noted that in many drunk driving situations, no such exigencies exist. Where, for instance, "the warrant process will not significantly increase the delay" in testing "because an officer can take steps to secure a warrant" while the subject is being prepared for the test, there is "no plausible justification for an exception to the warrant requirement." Id., at ___ (slip op., at 10). The Court thus found it unnecessary to "depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State." Id., at ___ (slip op., at 9).3
II
The States do not challenge McNeely's holding that a categorical exigency exception is not necessary to accommodate the governmental interests associated with the dissipation of blood alcohol after drunk-driving arrests. They instead seek to exempt breath tests from the warrant requirement categorically under the search-incident-to-arrest doctrine. The majority agrees. Both are wrong.
As discussed above, regardless of the exception a State requests, the Court's traditional framework asks whether, in light of the privacy interest at stake, a legitimate governmental interest ever requires conducting breath searches without a warrant--and, if so, whether that governmental interest is adequately addressed by a case-by-case exception or requires a categorical exception to the warrant requirement. That framework directs the conclusion that a categorical search-incident-to-arrest rule for breath tests is unnecessary to address the States' governmental interests in combating drunk driving.
A
Beginning with the governmental interests, there can be no dispute that States must have tools to combat drunk driving. See ante, at 2-8. But neither the States nor the Court has demonstrated that "obtaining a warrant" in cases not already covered by the exigent circumstances exception "is likely to frustrate the governmental purpose[s] behind [this] search." Camara, 387 U. S., at 533.4
First, the Court cites the governmental interest in protecting the public from drunk drivers. See ante, at 24. But it is critical to note that once a person is stopped for drunk driving and arrested, he no longer poses an immediate threat to the public. Because the person is already in custody prior to the administration of the breath test, there can be no serious claim that the time it takes to obtain a warrant would increase the danger that drunk driver poses to fellow citizens.
Second, the Court cites the governmental interest in preventing the destruction or loss of evidence. See ante, at 30-31. But neither the Court nor the States identify any practical reasons why obtaining a warrant after making an arrest and before conducting a breath test compromises the quality of the evidence obtained. To the contrary, the delays inherent in administering reliable breath tests generally provide ample time to obtain a warrant.
There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. See 2 R. Erwin, Defense of Drunk Driving Cases §18.08 (3d ed. 2015) ("Screening devices are . . . used when it is impractical to utilize an evidential breath tester (EBT) (e.g. at roadside or at various work sites)"). The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery. Brief for Respondent in No. 14-1618, p. 8, n. 2; National Highway Transportation Safety Admin. (NHTSA), A. Berning et al., Refusal of Intoxication Testing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008). Transporting the motorist to the equipment site is not the only potential delay in the process, however. Officers must also observe the subject for 15 to 20 minutes to ensure that "residual mouth alcohol," which can inflate results and expose the test to an evidentiary challenge at trial, has dissipated and that the subject has not inserted any food or drink into his mouth.5 In many States, including Minnesota, officers must then give the motorist a window of time within which to contact an attorney before administering a test.6 Finally, if a breath test machine is not already active, the police officer must set it up. North Dakota's Intoxilyzer 8000 machine can take as long as 30 minutes to "warm-up."7
Because of these necessary steps, the standard breath test is conducted well after an arrest is effectuated. The Minnesota Court of Appeals has explained that nearly all breath tests "involve a time lag of 45 minutes to two hours." State v. Larson, 429 N. W. 2d 674, 676 (Minn. App. 1988); see also State v. Chirpich, 392 N. W. 2d 34, 37 (Minn. App. 1986). Both North Dakota and Minnesota give police a 2-hour period from the time the motorist was pulled over within which to administer a breath test. N. D. Cent. Code Ann. §39-20-04.1(1) (2008); Minn. Stat. §169A.20, subd. 1(5) (2014).8
During this built-in window, police can seek warrants. That is particularly true in light of "advances" in technol-ogy that now permit "the more expeditious processing of warrant applications." McNeely, 569 U. S., at ___-___, and n. 4 (slip op., at 11-12, and n. 4) (describing increased availability of telephonic warrants); Riley, 573 U. S., at ___ (slip op., at 26) (describing jurisdictions that have adopted an e-mail warrant system that takes less than 15 minutes); Minn. Rules Crim. Proc. 33.05, 36.01-36.08 (2010 and Supp. 2013) (allowing telephonic warrants); N. D. Rules Crim. Proc. 41(c)(2)-(3) (2013) (same). Moreover, counsel for North Dakota explained at oral argument that the State uses a typical "on-call" system in which some judges are available even during off-duty times.9 See Tr. of Oral Arg. 42.
Where "an officer can . . . secure a warrant while" the motorist is being transported and the test is being prepared, this Court has said that "there would be no plausible justification for an exception to the warrant requirement." McNeely, 569 U. S., at ___ (slip op., at 10). Neither the Court nor the States provide any evidence to suggest that, in the normal course of affairs, obtaining a warrant and conducting a breath test will exceed the allotted 2-hour window.
Third, the Court and the States cite a governmental interest in minimizing the costs of gathering evidence of drunk driving. But neither has demonstrated that requiring police to obtain warrants for breath tests would impose a sufficiently significant burden on state resources to justify the elimination of the Fourth Amendment's warrant requirement. The Court notes that North Dakota has 82 judges and magistrate judges who are authorized to issue warrants. See ante, at 27-28. Because North Da-kota has roughly 7,000 drunk-driving arrests annually, the Court concludes that if police were required to obtain warrants "for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped." Ante, at 27. That conclusion relies on inflated numbers and unsupported inferences.
Assuming that North Dakota police officers do not obtain warrants for any drunk-driving arrests today, and assuming that they would need to obtain a warrant for every drunk-driving arrest tomorrow, each of the State's 82 judges and magistrate judges would need to issue fewer than two extra warrants per week.10 Minnesota has nearly the same ratio of judges to drunk-driving arrests, and so would face roughly the same burden.11 These back-of-the-envelope numbers suggest that the burden of obtaining a warrant before conducting a breath test would be small in both States.
But even these numbers overstate the burden by a significant degree. States only need to obtain warrants for drivers who refuse testing and a significant majority of drivers voluntarily consent to breath tests, even in States without criminal penalties for refusal. In North Dakota, only 21% of people refuse breath tests and in Minnesota, only 12% refuse. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States-2011 Update 2 (No. 811881 2014). Including States that impose only civil penalties for refusal, the average refusal rate is slightly higher at 24%. Id., at 3. Say that North Dakota's and Minnesota's refusal rates rise to double the mean, or 48%. Each of their judges and magistrate judges would need to issue fewer than one extra warrant a week.12 That bears repeating: The Court finds a categorical exception to the warrant requirement because each of a State's judges and magistrate judges would need to issue less than one extra warrant a week.
Fourth, the Court alludes to the need to collect evidence conveniently. But mere convenience in investigating drunk driving cannot itself justify an exception to the warrant requirement. All of this Court's postarrest exceptions to the warrant requirement require a law enforcement interest separate from criminal investigation. The Court's justification for the search incident to arrest rule is "the officer's safety" and the prevention of evidence "concealment or destruction." Chimel, 395 U. S., at 763. The Court's justification for the booking exception, which allows police to obtain fingerprints and DNA without a warrant while booking an arrestee at the police station, is the administrative need for identification. See Maryland v. King, 569 U. S. ___, ___-___ (2013) (slip op., at 11-12). The Court's justification for the inventory search exception, which allows police to inventory the items in the arrestee's personal possession and car, is the need to "protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U. S. 367, 372 (1987).
This Court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement. See Florida v. Wells, 495 U. S. 1, 4 (1990) (suppressing evidence where supposed "inventory" search was done without standardized criteria, suggesting instead " 'a purposeful and general means of discovering evidence of crime' "). If the simple collection of evidence justifies an exception to the warrant requirement even where a warrant could be easily obtained, exceptions would become the rule. Ibid.
Finally, as a general matter, the States have ample tools to force compliance with lawfully obtained warrants. This Court has never cast doubt on the States' ability to impose criminal penalties for obstructing a search authorized by a lawfully obtained warrant. No resort to violent compliance would be necessary to compel a test. If a police officer obtains a warrant to conduct a breath test, citizens can be subjected to serious penalties for obstruction of justice if they decline to cooperate with the test.
This Court has already taken the weighty step of characterizing breath tests as "searches" for Fourth Amendment purposes. See Skinner, 489 U. S., at 616-617. That is because the typical breath test requires the subject to actively blow alveolar (or "deep lung") air into the machine. Ibid. Although the process of physically blowing into the machine can be completed in as little as a few minutes, the end-to-end process can be significantly longer. The person administering the test must calibrate the machine, collect at least two separate samples from the arrestee, change the mouthpiece and reset the machine between each, and conduct any additional testing indicated by disparities between the two tests.13 Although some searches are certainly more invasive than breath tests, this Court cannot do justice to their status as Fourth Amendment "searches" if exaggerated time pressures, mere convenience in collecting evidence, and the "burden" of asking judges to issue an extra couple of warrants per month are costs so high as to render reasonable a search without a warrant.14 The Fourth Amendment becomes an empty promise of protecting citizens from unreasonable searches.
B
After evaluating the governmental and privacy interests at stake here, the final step is to determine whether any situations in which warrants would interfere with the States' legitimate governmental interests should be accommodated through a case-by-case or categorical exception to the warrant requirement.
As shown, because there are so many circumstances in which obtaining a warrant will not delay the administration of a breath test or otherwise compromise any governmental interest cited by the States, it should be clear that allowing a categorical exception to the warrant requirement is a "considerable overgeneralization" here. McNeely, 569 U. S., at ___ (slip op., at 10). As this Court concluded in Riley and McNeely, any unusual issues that do arise can "better [be] addressed through consideration of case-specific exceptions to the warrant requirement." Riley, 573 U. S., at ___ (slip op., at 11); see also McNeely, 569 U. S., at ___ (slip op., at 15) (opinion of Sotomayor, J.).
Without even considering the comparative effectiveness of case-by-case and categorical exceptions, the Court reaches for the categorical search-incident-to-arrest exception and enshrines it for all breath tests. The majority apparently assumes that any postarrest search should be analyzed under the search-incident-to-arrest doctrine. See ante, at 16 ("In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests").
But, as we explained earlier, police officers may want to conduct a range of different searches after placing a person under arrest. Each of those searches must be separately analyzed for Fourth Amendment compliance. Two narrow types of postarrest searches are analyzed together under the rubric of our search-incident-to-arrest doctrine: Searches to disarm arrestees who could pose a danger before a warrant is obtained and searches to find evidence arrestees have an incentive to destroy before a warrant is obtained. Chimel, 395 U. S., at 763. Other forms of postarrest searches are analyzed differently because they present needs that require more tailored exceptions to the warrant requirement. See supra, at 4-5 (discussing postarrest application of the "exigency" exception); see also supra, at 13-14 (discussing postarrest booking and inven-tory exceptions).
The fact that a person is under arrest does not tell us which of these warrant exceptions should apply to a par-ticular kind of postarrest search. The way to analyze which exception, if any, is appropriate is to ask whether the exception best addresses the nature of the postarrest search and the needs it fulfills. Yet the majority never explains why the search-incident-to-arrest framework--its justifications, applications, and categorical scope--is best suited to breath tests.
To the contrary, the search-incident-to-arrest exception is particularly ill suited to breath tests. To the extent the Court discusses any fit between breath tests and the rationales underlying the search-incident-to-arrest exception, it says that evidence preservation is one of the core values served by the exception and worries that "evidence may be lost" if breath tests are not conducted. Ante, at 31. But, of course, the search-incident-to-arrest exception is concerned with evidence destruction only insofar as that destruction would occur before a warrant could be sought. And breath tests are not, except in rare circumstances, conducted at the time of arrest, before a warrant can be obtained, but at a separate location 40 to 120 minutes after an arrest is effectuated. That alone should be reason to reject an exception forged to address the immediate needs of arrests.
The exception's categorical reach makes it even less suitable here. The search-incident-to-arrest exception is applied categorically precisely because the needs it addresses could arise in every arrest. Robinson, 414 U. S., at 236. But the government's need to conduct a breath test is present only in arrests for drunk driving. And the asserted need to conduct a breath test without a warrant arises only when a warrant cannot be obtained during the significant built-in delay between arrest and testing. The conditions that require warrantless breath searches, in short, are highly situational and defy the logical underpinnings of the search-incident-to-arrest exception and its categorical application.
* * *
In Maryland v. King, this Court dispensed with the warrant requirement and allowed DNA searches following an arrest. But there, it at least attempted to justify the search using the booking exception's interest in identifying arrestees. 569 U. S., at ___-___ (slip op., at 11-18); id., at ___-___ (slip op., at 4-6) (Scalia, J., dissenting). Here, the Court lacks even the pretense of attempting to situate breath searches within the narrow and weighty law enforcement needs that have historically justified the limited use of warrantless searches. I fear that if the Court continues down this road, the Fourth Amendment's warrant requirement will become nothing more than a suggestion.
Thomas, J., concurring in part and dissenting in part
579 U. S. ____ (2016)
Nos. 14-1468, 14-1470, and 14-1507
DANNY BIRCHFIELD, PETITIONER 14-1468 v. NORTH DAKOTA; WILLIAM ROBERT BERNARD, Jr., PETITIONER 14-1470 v. MINNESOTA; AND STEVE MICHAEL BEYLUND, PETITIONER 14-1507 v. GRANT LEVI, DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION
on writ of certiorari to the supreme court of north dakota
on writ of certiorari to the supreme court of minnesota
on writ of certiorari to the supreme court of north dakota
[June 23, 2016]
Justice Thomas, concurring in judgment in part and dissenting in part.
The compromise the Court reaches today is not a good one. By deciding that some (but not all) warrantless tests revealing the blood alcohol concentration (BAC) of an arrested driver are constitutional, the Court contorts the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement. The far simpler answer to the question presented is the one rejected in Missouri v. McNeely, 569 U. S. ___ (2013). Here, the tests revealing the BAC of a driver suspected of driving drunk are constitutional under the exigent-circumstances exception to the warrant requirement. Id., at ___-___ (Thomas, J., dissenting) (slip op., at 3-4).
I
Today's decision chips away at a well-established exception to the warrant requirement. Until recently, we have admonished that "[a] police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search." United States v. Robinson, 414 U. S. 218, 235 (1973). Under our precedents, a search incident to lawful arrest "require[d] no additional justification." Ibid. Not until the recent decision in Riley v. California, 573 U. S. ___ (2014), did the Court begin to retreat from this categorical approach because it feared that the search at issue, the "search of the information on a cell phone," bore "little resemblance to the type of brief physical search" contemplated by this Court's past search-incident-to-arrest decisions. Id., at ___ (slip op., at 10). I joined Riley, however, because the Court resisted the temptation to permit searches of some kinds of cell-phone data and not others, id., at ___-___ (slip op., at 23-25), and instead asked more generally whether that entire "category of effects" was searchable without a warrant, id., at ___ (slip op., at 10).
Today's decision begins where Riley left off. The Court purports to apply Robinson but further departs from its categorical approach by holding that warrantless breath tests to prevent the destruction of BAC evidence are constitutional searches incident to arrest, but warrantless blood tests are not. Ante, at 35 ("Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving"). That hairsplitting makes little sense. Either the search-incident-to-arrest exception permits bodily searches to prevent the destruction of BAC evidence, or it does not.
The Court justifies its result--an arbitrary line in the sand between blood and breath tests--by balancing the invasiveness of the particular type of search against the government's reasons for the search. Ante, at 20-36. Such case-by-case balancing is bad for the People, who "through ratification, have already weighed the policy tradeoffs that constitutional rights entail." Luis v. United States, 578 U. S. ___, ___ (2016) (Thomas, J., concurring in judgment) (slip op., at 10); see also Crawford v. Washington, 541 U. S. 36, 67-68 (2004). It is also bad for law enforcement officers, who depend on predictable rules to do their job, as Members of this Court have exhorted in the past. See Arizona v. Gant, 556 U. S. 332, 359 (2009) (Alito, J., dissenting); see also id., at 363 (faulting the Court for "leav[ing] the law relating to searches incident to arrest in a confused and unstable state").
Today's application of the search-incident-to-arrest exception is bound to cause confusion in the lower courts. The Court's choice to allow some (but not all) BAC searches is undeniably appealing, for it both reins in the pernicious problem of drunk driving and also purports to preserve some Fourth Amendment protections. But that compromise has little support under this Court's existing precedents.
II
The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in McNeely. Under that approach, both warrantless breath and blood tests are constitutional because "the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances." 569 U. S., at ___-___ (dissenting opinion) (slip op., at 3-4).
The Court in McNeely rejected that bright-line rule and instead adopted a totality-of-the-circumstances test examining whether the facts of a particular case presented exigent circumstances justifying a warrantless search. Id., at ___ (slip op., at 1). The Court ruled that "the natural dissipation of alcohol in the blood" could not "categorically" create an "exigency" in every case. Id., at ___ (slip op., at 13). The destruction of "BAC evidence from a drunk-driving suspect" that "naturally dissipates over time in a gradual and relatively predictable manner," according to the Court, was qualitatively different from the destruction of evidence in "circumstances in which the suspect has control over easily disposable evidence." Id., at ___ (slip op., at 10).
Today's decision rejects McNeely's arbitrary distinction between the destruction of evidence generally and the destruction of BAC evidence. But only for searches incident to arrest. Ante, at 31-33. The Court declares that such a distinction "between an arrestee's active destruction of evidence and the loss of evidence due to a natural process makes little sense." Ante, at 31. I agree. See McNeely, supra, at ___-___ (Thomas, J., dissenting) (slip op., at 5-6). But it also "makes little sense" for the Court to reject McNeely's arbitrary distinction only for searches incident to arrest and not also for exigent-circumstances searches when both are justified by identical concerns about the destruction of the same evidence. McNeely's distinction is no less arbitrary for searches justified by exigent circumstances than those justified by search incident to arrest.
The Court was wrong in McNeely, and today's compromise is perhaps an inevitable consequence of that error. Both searches contemplated by the state laws at issue in these cases would be constitutional under the exigent-circumstances exception to the warrant requirement. I respectfully concur in the judgment in part and dissent in part.
FOOTNOTES
Footnote 1
Together with No. 14-1470, Bernard v. Minnesota, on certiorari to the Supreme Court of Minnesota, and No. 14-1507, Beylund v. Levi, Director, North Dakota Department of Transportation, also on certiorari to the Supreme Court of North Dakota.
FOOTNOTES
Footnote 1
In addition, BAC may be determined by testing a subject's urine, which also requires the test subject's cooperation. But urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one.
Footnote 2
See Smith, Moving From Grief to Action: Two Families Push for Stronger DUI Laws in N. D., Bismarck Tribune, Feb. 2, 2013, p. 1A; Haga, Some Kind of Peace: Parents of Two Young Boys Killed in Campground Accident Urge for Tougher DUI Penalties in N. D., Grand Forks Herald, Jan. 15, 2013, pp. A1-A2.
Footnote 3
At most, there may be evidence that an arrestee's mouth could be searched in appropriate circumstances at the time of the founding. See W. Cuddihy, Fourth Amendment: Origins and Original Meaning: 602-1791, p. 420 (2009). Still, searching a mouth for weapons or contraband is not the same as requiring an arrestee to give up breath or blood.
Footnote 4
See North Dakota Supreme Court, All District Judges, http:// www.ndcourts.gov/court/districts/judges.htm (all Internet materials as last visited June 21, 2016).
Footnote 5
See North Dakota Supreme Court, Magistrates, http://www.ndcourts.gov/ court/counties/magistra/members.htm.
Footnote 6
North Dakota Supreme Court justices apparently also have authority to issue warrants statewide. See ND Op. Atty. Gen. 99-L-132, p. 2 (Dec. 30, 1999). But we highly doubt that they regularly handle search-warrant applications, much less during graveyard shifts.
Footnote 7
Justice Sotomayor objects to treating warrantless breath tests as searches incident to a lawful arrest on two additional grounds.
First, she maintains that "[a]ll of this Court's postarrest exceptions to the warrant requirement require a law enforcement interest separate from criminal investigation." Post, at 14. At least with respect to the search-incident-to-arrest doctrine, that is not true. As the historical authorities discussed earlier attest, see Part V-A, supra, the doctrine has always been understood as serving investigative ends, such as "discover[ing] and seiz[ing] . . . evidences of crime." Weeks v. United States, 232 U. S. 383, 392 (1914); see also United States v. Robinson, 414 U. S. 218, 235 (1973) (emphasizing "the need . . . to discover evidence"). Using breath tests to obtain evidence of intoxication is therefore well within the historical understanding of the doctrine's purposes.
Second, Justice Sotomayor contends that the search-incident-to-arrest doctrine does not apply when "a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted." Post, at 7, n. 3; see also post, at 17-19. But while this Court's cases have certainly recognized that "more targeted" exceptions to the warrant requirement may justify a warrantless search even when the search-incident-to-arrest exception would not, Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 14), Justice Sotomayor cites no authority for the proposition that an exception to the warrant requirement cannot apply simply because a "narrower" exception might apply.
Footnote 8
Justice Thomas partly dissents from this holding, calling any distinction between breath and blood tests "an arbitrary line in the sand." Post, at 3 (opinion concurring in judgment in part and dissenting in part). Adhering to a position that the Court rejected in McNeely, Justice Thomas would hold that both breath and blood tests are constitutional with or without a warrant because of the natural metabolization of alcohol in the bloodstream. Post, at 3-5. Yet Justice Thomas does not dispute our conclusions that blood draws are more invasive than breath tests, that breath tests generally serve state interests in combating drunk driving as effectively as blood tests, and that our decision in Riley calls for a balancing of individual privacy interests and legitimate state interests to determine the reasonableness of the category of warrantless search that is at issue. Contrary to Justice Thomas's contention, this balancing does not leave law enforcement officers or lower courts with unpredictable rules, because it is categorical and not "case-by-case," post, at 3. Indeed, today's decision provides very clear guidance that the Fourth Amendment allows warrantless breath tests, but as a general rule does not allow warrantless blood draws, incident to a lawful drunk-driving arrest.
Footnote 9
If the court on remand finds that Beylund did not voluntarily consent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 574 U. S. ___, ___-___ (2014) (slip op., at 8-10), and the evidence is offered in an administrative rather than criminal proceeding, see Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363-364 (1998). And as Beylund notes, remedies may be available to him under state law. See Brief for Petitioner in No. 14-1507, pp. 13-14.
FOOTNOTES
Footnote 1
Because I see no justification for warrantless blood or warrantless breath tests, I also dissent from the parts of the majority opinion that justify its conclusions with respect to blood tests on the availability of warrantless breath tests. See ante, at 33-34.
Footnote 2
The Court is wrong to suggest that because the States are seeking an extension of the "existing" search-incident-to-arrest exception rather than the "creation" of a new exception for breath searches, this Court need not determine whether the governmental interest in these searches can be accomplished without excusing the warrant requirement. Ante, at 26. To the contrary, as the very sentence the Court cites illustrates, the question is always whether the particular "type of search in question" is reasonable if conducted without a warrant. Camara, 387 U. S., at 533. To answer that question, in every case, courts must ask whether the "burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Ibid. This question may be answered based on existing doctrine, or it may require the creation of new doctrine, but it must always be asked.
Footnote 3
The Court quibbles with our unremarkable statement that the categorical search-incident-to-arrest doctrine and the case-by-case exigent circumstances doctrine are part of the same framework by arguing that a footnote in McNeely was "careful to note that the decision did not address any other exceptions to the warrant requirement." Ante, at 26-27 (citing McNeely, 569 U. S., at ___, n. 3 (slip op., at 7, n. 3)). That footnote explains the difference between categorical exceptions and case-by-case exceptions generally. Id., at ___, n. 3. It does nothing to suggest that the two forms of exceptions should not be considered together when analyzing whether it is reasonable to exempt categorically a particular form of search from the Fourth Amendment's warrant requirement.
It should go without saying that any analysis of whether to apply a Fourth Amendment warrant exception must necessarily be comparative. If a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted, a more sweeping exception will be overbroad and could lead to unnecessary and "unreasonable searches" under the Fourth Amendment. Contrary to the Court's suggestion that "no authority" supports this proposition, see ante, at 33 n. 8, our cases have often deployed this commonsense comparative check. See Riley v. California, 573 U. S. ___, ___-___ (2014) (slip op., at 14-15) (rejecting the application of the search-incident-to-arrest exception because the exigency exception is a "more targeted wa[y] to address [the government's] concerns"); id., at ___ (slip op., at 11) (analyzing whether the governmental interest can be "better addressed through consideration of case-specific exceptions to the warrant requirement"); id., at __ (slip op., at 26-27) (noting that "[i]n light of the availability of the exigent circumstances exception, there is no reason to believe that" the governmental interest cannot be satisfied without a categorical search-incident-to-arrest exception); McNeely, 569 U. S., at ___ (slip op., at 9-10) (holding that the availability of the exigency exception for circumstances that "make obtaining a warrant impractical" is "reason . . . not to accept the 'considerable overgeneralization' that a per se rule would reflect").
Footnote 4
Although Bernard's case arises in Minnesota, North Dakota's similar breath test laws are before this Court. I therefore consider both States together.
Footnote 5
See NHTSA and International Assn. of Chiefs of Police, DWI Detection and Standardized Field Sobriety Testing Participant Guide, Session 7, p. 20 (2013).
Footnote 6
See Minn. Stat. §169A.51, subd. 2(4) (2014) ("[T]he person has the right to consult with an attorney, but . . . this right is limited to the extent that it cannot unreasonably delay administration of the test"); see also Kuhn v. Commissioner of Public Safety, 488 N. W. 2d 838 (Minn. App. 1992) (finding 24 minutes insufficient time to contact an attorney before being required to submit to a test).
Footnote 7
See Office of Attorney General, Crime Lab. Div., Chemical Test Training Student Manual, Fall 2011-Spring 2012, p. 13 (2011).
Footnote 8
Many tests are conducted at the outer boundaries of that window. See, e.g., Israel v. Commissioner of Public Safety, 400 N. W. 2d 428 (Minn. App. 1987) (57 minute poststop delay); Mosher v. Commissioner of Public Safety, 2015 WL 3649344 (Minn. App., June 15, 2015) (119 minute postarrest delay); Johnson v. Commissioner of Public Safety, 400 N. W. 2d 195 (Minn. App. 1987) (96 minute postarrest delay); Scheiterlein v. Commissioner of Public Safety, 2014 WL 3021278 (Minn. App., July 7, 2014) (111 minute poststop delay).
Footnote 9
Counsel for North Dakota represented at oral argument that in "larger jurisdictions" it "takes about a half an hour" to obtain a warrant. Tr. of Oral Arg. 42. Counsel said that it is sometimes "harder to get somebody on the phone" in rural jurisdictions, but even if it took twice as long, the process of obtaining a warrant would be unlikely to take longer than the inherent delays in preparing a motorist for testing and would be particularly unlikely to reach beyond the 2-hour window within which officers can conduct the test.
Footnote 10
Seven thousand annual arrests divided by 82 judges and magistrate judges is 85.4 extra warrants per judge and magistrate judge per year. And 85.4 divided by 52 weeks is 1.64 extra warrants per judge and magistrate judge per week.
Footnote 11
Minnesota has about 25,000 drunk-driving incidents each year. Minn. Dept. of Public Safety, Office of Traffic Safety, Minn. Impaired Driving Facts 2014, p. 2 (2015). In Minnesota, all judges not exercising probate jurisdiction can issue warrants. Minn. Stat. §626.06 (2009). But the state district court judges appear to do the lion's share of that work. So, conservatively counting only those judges, the State has 280 judges that can issue warrants. Minnesota Judicial Branch, Report to the Community 23 (2015). Similar to North Dakota, that amounts to 1.72 extra warrants per judge per week.
Footnote 12
Because each of North Dakota's judges and magistrate judges would have to issue an extra 1.64 warrants per week assuming a 100% refusal rate, see supra, at 13, nn. 10-11, they would have to issue an additional 0.79 per week assuming a 48% refusal rate. Adjusting for the same conservatively high refusal rate, Minnesota would go from 1.72 additional warrants per judge per week to just 0.82.
Footnote 13
See Office of Attorney General, Crime Lab. Div., Approved Method To Conduct Breath Tests With the Intoxilyzer 8000 (BRS-001), pp. 4-6, 8 (2012).
Footnote 14
In weighing the governmental interests at stake here, the Court also downplays the "benefits" that warrants provide for breath tests. Because this Court has said unequivocally that warrants are the usual safeguard against unreasonable searches, see Katz v. United States, 389 U. S. 347, 357 (1967), the legal relevance of this discussion is not clear. In any event, the Court is wrong to conclude that warrants provide little benefit here. The Court says that any warrants for breath tests would be issued based on the "characterization" of the police officer, which a "magistrate would be in a poor position to challenge." Ante, at 29. Virtually all warrants will rely to some degree on an officer's own perception. The very purpose of warrants is to have a neutral arbiter determine whether inferences drawn from officers' perceptions and circumstantial evidence are sufficient to justify a search. Regardless of the particulars, the Court's mode of analysis is a dangerous road to venture down. Historically, our default has been that warrants are required. This part of the Court's argument instead suggests, without precedent, that their value now has to be proven.
13.4 Mitchell v. Wisconsin 13.4 Mitchell v. Wisconsin
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE ALITO announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE KAVANAUGH join.
In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases. First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.
Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a
breath test. In such cases, we hold, the exigent circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.
I
A
In Birchfield v. North Dakota, 579 U. S. ___ (2016), we recounted the country’s efforts over the years to address the terrible problem of drunk driving. Today, “all States have laws that prohibit motorists from driving with a [BAC] that exceeds a specified level.” Id., at ___ (slip op., at 2). And to help enforce BAC limits, every State has passed what are popularly called implied-consent laws. Ibid. As “a condition of the privilege of ” using the public roads, these laws require that drivers submit to BAC testing “when there is sufficient reason to believe they are violating the State’s drunk-driving laws.” Id., at ___, ___ (slip op., at 2, 6).
Wisconsin’s implied-consent law is much like those of the other 49 States and the District of Columbia. It deems drivers to have consented to breath or blood tests if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses.[1] See Wis. Stat. §§343.305(2), (3). Officers seeking to conduct a BAC test must read aloud a statement declaring their intent to administer the test and advising drivers of their options and the implications of their choice. §343.305(4). If a driver’s BAC level proves too high, his license will be suspended; but if he refuses testing, his license will be revoked and his refusal may be used against him in court. See ibid. No test will be administered if a driver refuses— or, as the State would put it, “withdraws” his statutorily presumed consent. But “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have” withdrawn it. §343.305(3)(b). See also §§343.305(3)(ar)1–2. More than half the States have provisions like this one regarding unconscious drivers.
B
The sequence of events that gave rise to this case began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that petitioner Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell wandering near a lake. Stumbling and slurring his words, Mitchell could hardly stand without the support of two officers. Jaeger judged a field sobriety test hopeless, if not dangerous, and gave Mitchell a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Jaeger arrested Mitchell for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment.
On the way, Mitchell’s condition continued to deteriorate—so much so that by the time the squad car had reached the station, he was too lethargic even for a breath test. Jaeger therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness on the ride over and had to be wheeled in. Even so, Jaeger read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%. Mitchell was charged with violating two related drunk driving provisions. See §§346.63(1)(a), (b). He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreasonable searches” because it was conducted without a warrant. Wisconsin chose to rest its response on the notion that its implied-consent law (together with Mitchell’s free choice to drive on its highways) rendered the blood test a consensual one, thus curing any Fourth Amendment problem. In the end, the trial court denied Mitchell’s motion to suppress, and a jury found him guilty of the charged offenses. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State’s implied-consent law was sufficient to show that Mitchell’s test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. See 2018 WI 84, ¶15, 383 Wis. 2d 192, 202–203, 914 N. W. 2d 151, 155–156 (2018). The Wisconsin Supreme Court
affirmed Mitchell’s convictions, and we granted certiorari, 586 U. S. ___ (2019), to decide “[w]hether a statute author- izing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement,” Pet. for Cert. ii.
II
In considering Wisconsin’s implied-consent law, we do not write on a blank slate. “Our prior opinions have referred approvingly to the general concept of impliedconsent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield, 579 U. S., at ___ (slip op., at 36). But our 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. Instead, we have based our decisions on the precedent regarding the specific constitutional claims in each case, while keeping in mind the wider regulatory scheme developed over the years to combat drunk driving. That scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws.
Over the last 50 years, we have approved many of the defining elements of this scheme. We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against selfincrimination. See Schmerber v. California, 384 U. S. 757, 765 (1966). Nor does using their refusal against them in court. See South Dakota v. Neville, 459 U. S. 553, 563 (1983). And punishing that refusal with automatic license revocation does not violate drivers’ due process rights if they have been arrested upon probable cause, Mackey v. Montrym, 443 U. S. 1 (1979); on the contrary, this kind of summary penalty is “unquestionably legitimate.” Neville, supra, at 560.
These cases generally concerned the Fifth and Fourteenth Amendments, but motorists charged with drunk driving have also invoked the Fourth Amendment’s ban on “unreasonable searches” since BAC tests are “searches.” See Birchfield, 579 U. S., at ___ (slip op., at 14). Though our precedent normally requires a warrant for a lawful search, there are well-defined exceptions to this rule. In Birchfield, we applied precedent on the “search-incidentto-arrest” exception to BAC testing of conscious drunkdriving suspects. We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35).
We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013). In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough. Id., at 156. But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added).
Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunkdriving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same.
Mitchell’s stupor and eventual unconsciousness also deprived officials of a reasonable opportunity to administer a breath test. To be sure, Officer Jaeger managed to conduct “a preliminary breath test” using a portable machine when he first encountered Mitchell at the lake. App. to Pet. for Cert. 60a. But he had no reasonable opportunity to give Mitchell a breath test using “evidence-grade breath testing machinery.” Birchfield, 579 U. S., at ___ (SOTOMAYOR, J., concurring in part and dissenting in part) (slip op., at 10). As a result, it was reasonable for Jaeger to seek a better breath test at the station; he acted with reasonable dispatch to procure one; and when Mitchell’s condition got in the way, it was reasonable for Jaeger to pursue a blood test. As JUSTICE SOTOMAYOR explained in her partial dissent in Birchfield:
“There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. . . . The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery.” Id., at ___ (slip op., at 10).
Because the “standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station” or another appropriate facility, ibid., the important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for that kind of breath test.
III
The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable. See Birchfield, 579 U. S. at ___ (slip op., at 14). Though we have held that a warrant is normally required, we have also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)). In McNeely, we considered how the exigent circumstances exception applies to the broad category of cases in which a police officer has probable cause to believe that a motorist was driving under the influence of alcohol, and we do not revisit that question. Nor do we settle whether the exigent-circumstances exception covers the specific facts of this case.2
——————
2 JUSTICE SOTOMAYOR’s dissent argues that Wisconsin waived the argument that we now adopt, but the dissent paints a misleading picture of both the proceedings below and the ground for our decision.
First, as to the proceedings below, the dissent contends that the sole question certified to the Wisconsin Supreme Court was “ ‘whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.’ ” Post, at 3 (quoting App. 61). That is indeed how the intermediate appellate court understood the issue in the case, but the State Supreme Court took a broader view, as was its right. It regarded the appeal as presenting two questions, one of which was “whether a warrantless blood draw from an unconscious person pursuant to Wis. Stat. §343.305(3)(b) violates the Fourth Amendment.” See 383 Wis. 2d 192, 202–203, 914 N. W. 2d 151,155–156 (2018). This broad question easily encompasses the rationale that we adopt today.
Second, after noting that the State did not attempt below to make a case-specific showing of exigent circumstances, the dissent claims that our decision is based on this very ground. But that is not at all the basis for our decision. We do not hold that the State established that the facts of this particular case involve exigent circumstances under
McNeely. Rather, we adopt a rule for an entire category of cases— those in which a motorist believed to have driven under the influence of alcohol is unconscious and thus cannot be given a breath test. This rule is not based on what happened in petitioner’s particular case but on the circumstances generally present in cases that fall within the scope of the rule. Those are just the sorts of features of unconscious-driver cases that Wisconsin brought to our attention, see Brief for Respondent 54–55; Tr. of Oral Arg. at 32–34, 48–51, which petitioner addressed, see Reply Brief at 14–15; Tr. of Oral Arg. at 15–20, 23–24, 29–31, 63–66. So it is entirely proper for us to decide the case on this ground. See Thigpen v. Roberts, 468 U. S. 27, 29–30 (1984).
3 While our exigent-circumstances precedent requires a “ ‘totality of the circumstances’ ” analysis, “the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” McNeely, 569 U. S., at 166 (ROBERTS, C. J., concurring in part and dissenting in part). Indeed, our exigency case law is full of general rules providing such guidance. Thus, we allow police to proceed without a warrant when an occupant of a home requires “emergency assistance,” Brigham City v. Stuart, 547 U. S. 398, 403 (2006); when a building is on fire, see Michigan v. Tyler, 436 U. S. 499, 509 (1978); and when an armed robber has just entered a home, see United States v. Santana, 427 U. S. 38 (1976). “In each of these cases, the requirement that we base our decision on the ‘totality of the circumstances’ has not prevented us from spelling out a general rule for the police to follow.” McNeely, supra, at 168 (opinion of ROBERTS, C. J.). Neither does it prevent us here.
Instead, we address how the exception bears on the category of cases encompassed by the question on which we granted certiorari—those involving unconscious drivers.3 In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant.
A
The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level;
and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential.
Here we add a word about each of these points. First, highway safety is a vital public interest. For decades, we have strained our vocal chords to give adequate expression to the stakes. We have called highway safety a “compelling interest,” Mackey, 443 U. S., at 19; we have called it “paramount,” id., at 17. Twice we have referred to the effects of irresponsible driving as “slaughter” comparable to the ravages of war. Breithaupt v. Abram, 352 U. S. 432, 439 (1957); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971) (Blackmun, J., concurring in result in part and dissenting in part). We have spoken of “carnage,” Neville, 459 U. S., at 558–559, and even “frightful carnage,” Tate v. Short, 401 U. S. 395, 401 (1971) (Blackmun, J., concurring). The frequency of preventable collisions, we have said, is “tragic,” Neville, supra, at 558, and “astounding,” Breithaupt, supra, at 439. And behind this fervent language lie chilling figures, all captured in the fact that from 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. See National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts 2016, p. 40 (May 2018). In the best years, that would add up to more than one fatality per hour.
Second, when it comes to fighting these harms and promoting highway safety, federal and state lawmakers have long been convinced that specified BAC limits make a big difference. States resorted to these limits when earlier laws that included no “statistical definition of intoxication” proved ineffectual or hard to enforce. See Birchfield, 579 U. S., at ___–___ (slip op., at 2–3). The maximum permissible BAC, initially set at 0.15%, was first lowered to 0.10% and then to 0.08%. Id., at ___, ___– ___ (slip op., at 3, 6–7). Congress encouraged this process by conditioning the award of federal highway funds on the establishment of a BAC limit of 0.08%, see 23 U. S. C. §163(a); 23 CFR §1225.1 (2012), and every State has adopted this limit.[2] Not only that, many States, including Wisconsin, have passed laws imposing increased penalties for recidivists or for drivers with a BAC level that exceeds a higher threshold. See Wis. Stat. §346.65(2)(am); Birchfield, 579 U. S., at ___ (slip op., at 7).
There is good reason to think this strategy has worked. As we noted in Birchfield, these tougher measures corresponded with a dramatic drop in highway deaths and injuries: From the mid-1970’s to the mid-1980’s, “the number of annual fatalities averaged 25,000; by 2014 . . . , the number had fallen to below 10,000.” Id., at ___ (slip op., at 6).
Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court, id., at ___– ___ (slip op., at 3–5); see also McNeely, 569 U. S., at 159–
160 (plurality opinion). And we have recognized that “[e]xtraction of blood samples for testing is a highly effective means of ” measuring “the influence of alcohol.” Schmerber, 384 U. S., at 771.
Enforcement of BAC limits also requires prompt testing because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.” McNeely, 569 U. S., at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral nature of BAC was “essential to our holding in Schmerber,” which itself allowed a warrantless blood test for BAC. Id., at 152
——————
(opinion of the Court). And even when we later held that the exigent-circumstances exception would not permit a warrantless blood draw in every drunk-driving case, we acknowledged that delays in BAC testing can “raise questions about . . . accuracy.” Id., at 156.
It is no wonder, then, that the implied-consent laws that incentivize prompt BAC testing have been with us for 65 years and now exist in all 50 States. Birchfield, supra, at ___ (slip op., at 6). These laws and the BAC tests they require are tightly linked to a regulatory scheme that serves the most pressing of interests.
Finally, when a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.). Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above.
Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish.
For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. Id., at 149 (opinion of the Court) (internal quotation marks omitted). The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, “‘no time to secure a warrant.’” Ibid.
B
We held that there was no time to secure a warrant before a blood test of a drunk-driving suspect in Schmerber because the officer there could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” 384 U. S., at 770 (internal quotation marks omitted). So even if the constant dissipation of BAC evidence alone does not create an exigency, see McNeely, supra, at 150–151, Schmerber shows that it does so when combined with other pressing needs:
“We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .” 384 U. S., at 770–771.
Thus, exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.
1
In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness. Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency.5 It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care.6 Police can reasonably anticipate that such a driver might require monitoring, positioning, and support on the way to the hospital;7 that his blood may be drawn anyway, for diagnostic purposes, immediately on arrival;8 and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value. See McNeely, supra, at 156 (plurality opinion). All of that sets this case apart from
——————
- See National Institutes of Health, U. S. National Library of Medicine, MedlinePlus, Unconsciousness (June 3, 2019), https://medlineplus. gov/ency/article/000022.htm (all Internet materials as last visited June 25, 2019).
- Limmer et al., Emergency Care 598 (13th ed. 2016).
- See , at 593–594.
- See J. Kwasnoski, G. Partridge, & J. Stephen, Officer’s DUI Handbook 142 (6th ed. 2013) (“[M]ost hospitals routinely withdraw blood from the driver immediately upon admittance”); see also E. Mitchell & R. Medzon, Introduction to Emergency Medicine 269 (2005) (“Serum glucose and blood alcohol concentrations are two pieces of information that are of paramount importance when an apparently intoxicated patient arrives at the [emergency room]”); Mayo Clinic, Alcohol Poisoning: Diagnosis & Treatment (2019), https://www.mayoclinic.org/ diseases-conditions/alcohol-poisoning/diagnosis-treatment/drc-20354392. In this respect, the case for allowing a blood draw is stronger here than in Schmerber California, 384 U. S. 757 (1966). In the latter, it gave us pause that blood draws involve piercing a person’s skin. See id., at 762, 770. But since unconscious suspects will often have their skin pierced and blood drawn for diagnostic purposes, allowing law enforcement to use blood taken from that initial piercing would not increase the bodily intrusion. In fact, dispensing with the warrant rule could lessen the intrusion. It could enable authorities to use blood obtained by hospital staff when the suspect is admitted rather than having to wait to hear back about a warrant and then order what might be a second blood draw.
the uncomplicated drunk-driving scenarios addressed in McNeely. Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception. In such a case, as in Schmerber, an officer could “reasonably have believed that he was confronted with an emergency.” 384 U. S., at 770. Indeed, in many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park. And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene. In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test. In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born—just the kind of grim dilemma it lives to dissolve.
2
Mitchell objects that a warrantless search is unnecessary in cases involving unconscious drivers because warrants these days can be obtained faster and more easily.
But even in our age of rapid communication,
“[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. . . . And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest.” McNeely, 569 U. S., at 155.
In other words, with better technology, the time required has shrunk, but it has not disappeared. In the emergency scenarios created by unconscious drivers, forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies.
IV
When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.
* * *
The judgment of the Supreme Court of Wisconsin is vacated, and the case is remanded for further proceedings.
It is so ordered.
1
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE THOMAS, concurring in the judgment.
Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving— except when they aren’t. Compare ante, at 13, with ante, at 16. The plurality’s presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it. “The better (and far simpler) way to resolve” this case is to apply “the per se rule” I proposed in Missouri v. McNeely, 569 U. S. 141 (2013) (dissenting opinion). Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring in judgment in part and dissenting in part) (slip op., at 3). Under that rule, the natural metabolization of alcohol in the blood stream “‘creates an exigency once police have probable cause to believe the driver is drunk,’” regardless of whether the driver is conscious. Id., at ___ (slip op., at 4). Because I am of the view that the Wisconsin Supreme Court should apply that rule on remand, I concur only in the judgment.
I
The Fourth Amendment provides 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.” Although the Fourth Amendment does
2
not, by its text, require that searches be supported by a warrant, see Groh v. Ramirez, 540 U. S. 551, 571–573 (2004) (THOMAS, J., dissenting), “this Court has inferred that a warrant must generally be secured” for a search to comply with the Fourth Amendment, Kentucky v. King, 563 U. S. 452, 459 (2011). We have also recognized, however, that this warrant presumption “may be overcome in some circumstances because ‘[t]he ultimate touchstone of the Fourth Amendment is “reasonableness.”’” Ibid. Accordingly, we have held that “the warrant requirement is subject to certain reasonable exceptions.” Ibid.
In recent years, this Court has twice considered whether warrantless blood draws fall within an exception to the warrant requirement. First, in McNeely, a divided court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement. 569 U. S., at 145. Then, in Birchfield, we held that blood draws may not be administered as a search incident to a lawful arrest for drunk driving. 579 U. S., at ___ (slip op., at 35). The question we face in this case is whether the blood draw here fell within one of the “reasonable exceptions” to the warrant requirement.
II
The “exigent circumstances” exception applies when “the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” King, 563 U. S., at 460 (internal quotation marks omitted). Applying this doctrine, the Court has held that officers may conduct a warrantless search when failure to act would result in “the imminent destruction of evidence.” Ibid. (internal quotation marks omitted).
As I have explained before, “the imminent destruction of evidence” is a risk in every drunk-driving arrest and thus
3
“implicates the exigent-circumstances doctrine.” McNeely, 569 U. S., at 178. “Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime” as alcohol dissipates from the bloodstream. Id., at 177. In many States, this “rapid destruction of evidence,” id., at 178, is particularly problematic because the penalty for drunk driving depends in part on the driver’s blood alcohol concentration, see ante, at 11. Because the provisions of Wisconsin law at issue here allow blood draws only when the driver is suspected of impaired driving, ante, at 2–3, they fit easily within the exigency exception to the warrant requirement.
Instead of adopting this straightforward rule, the plurality makes a flawed distinction between ordinary drunkdriving cases in which blood alcohol concentration evidence “is dissipating” and those that also include “some other [pressing] factor.” Ante, at 6, 13, 16. But whether “some other factor creates pressing health, safety, or lawenforcement needs that would take priority over a warrant application” is irrelevant. Ante, at 13. When police have probable cause to conclude that an individual was driving drunk, probative evidence is dissipating by the minute. And that evidence dissipates regardless of whether police had another reason to draw the driver’s blood or whether “a warrant application would interfere with other pressing needs or duties.” Ante, at 16. The destruction of evidence alone is sufficient to justify a warrantless search based on exigent circumstances. See generally McNeely, 569 U. S., at 176–179 (opinion of THOMAS, J.).
Presumably, the plurality draws these lines to avoid overturning McNeely. See id., at 156 (majority opinion) (holding that “the natural dissipation of alcohol in the blood” does not “categorically” support a finding of exigency). But McNeely was wrongly decided, see id., at 176–183 (opinion of THOMAS, J.), and our decision in Birchfield has already undermined its rationale. Specifically, the Court
4
determined in McNeely that “[t]he context of blood testing is different in critical respects from other destruction-ofevidence cases in which the police are truly confronted with a now or never situation.” 569 U. S., at 153 (majority opinion) (internal quotation marks omitted). But the Court stated in Birchfield that a distinction between “an arrestee’s active destruction of evidence and the loss of evidence due to a natural process makes little sense.” 579 U. S., at ___ (slip op., at 31); see also ante, at 11–12. Moreover, to the extent McNeely was grounded in the belief that a per se rule was inconsistent with the “case by case,” “totality of the circumstances” analysis ordinarily applied in exigent-circumstances cases, see 569 U. S., at 156, that rationale was suspect from the start. That the exigent-circumstances exception might ordinarily require “an evaluation of the particular facts of each case,” Birchfield, supra, at ___ (slip op., at 32), does not foreclose us from recognizing that a certain, dispositive fact is always present in some categories of cases. In other words, acknowledging that destruction of evidence is at issue in every drunk-driving case does not undermine the general totality-of-the-circumstances approach that McNeely and Birchfield endorsed. Cf. ante, at 9, n. 3.
* * *
The Court has consistently held that police officers may perform searches without a warrant when destruction of evidence is a risk. United States v. Banks, 540 U. S. 31, 38 (2003); Richards v. Wisconsin, 520 U. S. 385, 395 (1997); Cupp v. Murphy, 412 U. S. 291, 295–296 (1973);
Schmerber v. California, 384 U. S. 757, 770–772 (1966). The rule should be no different in drunk-driving cases. Because the plurality instead adopts a rule more likely to confuse than clarify, I concur only in the judgment.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, dissenting.
The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.
The State of Wisconsin conceded in the state courts that it had time to get a warrant to draw Gerald Mitchell’s blood, and that should be the end of the matter. Because the plurality needlessly casts aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin does not urge, that the state courts did not consider, and that contravenes this Court’s precedent, I respectfully dissent.
I
In May 2013, Wisconsin police received a report that Gerald Mitchell, seemingly intoxicated, had driven away from his apartment building. A police officer later found Mitchell walking near a lake, slurring his speech and walking with difficulty. His van was parked nearby. The officer administered a preliminary breath test, which revealed a blood-alcohol concentration (BAC) of 0.24%. The officer arrested Mitchell for operating a vehicle while intoxicated.
Once at the police station, the officer placed Mitchell in a holding cell, where Mitchell began to drift into either sleep or unconsciousness. At that point, the officer decided against administering a more definitive breath test and instead took Mitchell to the hospital for a blood test. Mitchell became fully unconscious on the way. At the hospital, the officer read Mitchell a notice, required by Wisconsin’s so-called “implied consent” law, which gave him the opportunity to refuse BAC testing. See Wis. Stat. §343.305 (2016). But Mitchell was too incapacitated to respond. The officer then asked the hospital to test Mitchell’s blood. Mitchell’s blood was drawn about 90 minutes after his arrest, and the test revealed a BAC of 0.22%[3] At no point did the officer attempt to secure a warrant.
Mitchell was charged with violating two Wisconsin drunk-driving laws. See §§346.63(1)(a), (b). He moved to suppress the blood-test results, arguing that the warrantless blood draw was an unreasonable search under the Fourth Amendment. In response, Wisconsin conceded that exigent circumstances did not justify the warrantless blood draw. As the State’s attorney told the trial court, “There is nothing to suggest that this is a blood draw on a[n] exigent circumstances situation when there has been a concern for exigency. This is not that case.” App. 134.
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Instead, Wisconsin argued that the warrantless blood draw was lawful because of Wisconsin’s implied-consent statute. Id., at 133.
The trial court denied Mitchell’s motion to suppress, and a jury convicted him of the charged offenses. On appeal, the State Court of Appeals noted that Wisconsin had “expressly disclaimed that it was relying on exigent circumstances to justify the draw,” id., at 64, and that this case offered a chance to clarify the law on implied consent because the case “is not susceptible to resolution on the ground of exigent circumstances,” id., at 66. The Court of Appeals then certified the appeal to the Wisconsin Supreme Court, identifying the sole issue on appeal as “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.” Id., at 61. On certification from the state appellate court, the
Supreme Court of Wisconsin upheld the search.[4] The
Court granted certiorari to decide whether a statute like Wisconsin’s, which allows police to draw blood from an unconscious drunk-driving suspect, provides an exception to the Fourth Amendment’s warrant requirement.
II
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant. Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995).
The warrant requirement is not a mere formality; it ensures that necessary judgment calls are made “‘by a neutral and detached magistrate,’” not “‘by the officer engaged in the often competitive enterprise of ferreting out crime.’” Schmerber v. California, 384 U. S. 757, 770 (1966). A warrant thus serves as a check against searches that violate the Fourth Amendment by ensuring that a police officer is not made the sole interpreter of the Constitution’s protections. Accordingly, a search conducted without a warrant is “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967) (footnote omitted); see Riley v. California, 573 U. S. 373, 382 (2014) (“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement”). The carefully circumscribed exceptions to the warrant requirement, as relevant here, include the exigentcircumstances exception, which applies when “‘the exigen- cies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable,” Kentucky v. King, 563 U. S. 452, 460 (2011) (some internal quotation marks omitted); the consent exception for cases where voluntary consent is given to the search, see, e.g., Georgia v. Randolph, 547 U. S. 103, 109 (2006); and the exception for “searches incident to arrest,” see, e.g., Riley, 573 U. S., at 382.
A
Blood draws are “searches” under the Fourth Amendment. The act of drawing a person’s blood, whether or not he is unconscious, “involve[s] a compelled physical intrusion beneath [the] skin and into [a person’s] veins,” all for the purpose of extracting evidence for a criminal investigation. Missouri v. McNeely, 569 U. S. 141, 148 (2013).
The blood draw also “places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading,” Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (slip op., at 23), such as whether a person is pregnant, is taking certain medications, or suffers from an illness. That “invasion of bodily integrity” disturbs “an individual’s ‘most personal and deep-rooted expectations of privacy.’” McNeely, 569 U. S., at 148.
For decades, this Court has stayed true to the Fourth Amendment’s warrant requirement and the narrowness of its exceptions, even in the face of attempts categorically to exempt blood testing from its protections. In Schmerber, a man was hospitalized following a car accident. 384 U. S., at 758. At the scene of the accident and later at the hospital, a police officer noticed signs of intoxication, and he arrested Schmerber for drunk driving. Id., at 768–769. Without obtaining a warrant, the officer ordered a blood draw to measure Schmerber’s BAC, and Schmerber later challenged the blood test as an unreasonable search under the Fourth Amendment. Id., at 758–759. The Court reinforced that search warrants are “ordinarily required . . . where intrusions into the human body are concerned,” id., at 770, but it ultimately held that exigent circumstances justified the particular search at issue because certain “special facts”—namely, an unusual delay caused by the investigation at the scene and the subsequent hospital trip—left the police with “no time to seek out a magistrate and secure a warrant” before losing the evidence. Id., at 770–771.
More recently, in McNeely, the Court held that blood tests are not categorically exempt from the warrant requirement, explaining that exigency “must be determined case by case based on the totality of the circumstances.” 569 U. S., at 156. “[T]he natural dissipation of alcohol in the blood may support a finding of exigency in a specific case,” but “it does not do so categorically.” Ibid. If officers “can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search,” the Court made clear, “the Fourth Amendment mandates that they do so.” Id., at 152; see id., at 167 (ROBERTS, C. J., concurring in part and dissenting in part) (“The natural dissipation of alcohol in the bloodstream . . . would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant”).
In Birchfield, the Court rejected another attempt categorically to exempt blood draws from the warrant requirement. 579 U. S., at ___ (slip op., at 33). The Court considered whether warrantless breath and blood tests to determine a person’s BAC level were permissible as searches incident to arrest. The Court held that warrantless breath tests were permitted because they are insufficiently intrusive to outweigh the State’s need for BAC testing. See ibid. As to blood tests, however, the Court held the opposite: Because they are significantly more intrusive than breath tests, the warrant requirement applies unless particular exigent circumstances prevent officers from obtaining a warrant. Ibid.; see id., at ___ (slip op., at 34) (“Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception . . . when there is not”).[5]
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B
Those cases resolve this one. Schmerber and McNeely establish that there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case. And from Birchfield, we know that warrantless blood draws cannot be justified as searches incident to arrest. The lesson is straightforward: Unless there is too little time to do so, police officers must get a warrant before ordering a blood draw. See 579 U. S., at ___ (slip op., at 34); McNeely, 569 U. S., at 152.
Against this precedential backdrop, Wisconsin’s primary argument has always been that Mitchell consented to the blood draw through the State’s “implied-consent law.” Under that statute, a motorist who drives on the State’s roads is “deemed” to have consented to a blood draw, breath test, and urine test, and that supposed consent allows a warrantless blood draw from an unconscious motorist as long as the police have probable cause to believe that the motorist has violated one of the State’s impaired driving statutes. See Wis. Stat. §343.305.
The plurality does not rely on the consent exception here. See ante, at 5. With that sliver of the plurality’s reasoning I agree. I would go further and hold that the state statute, however phrased, cannot itself create the actual and informed consent that the Fourth Amendment requires. See Randolph, 547 U. S., at 109 (describing the “voluntary consent” exception to the warrant requirement as “‘jealously and carefully drawn’”); Bumper v. North Carolina, 391 U. S. 543, 548 (1968) (stating that consent must be “freely and voluntarily given”); see also Schneck-
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intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be”).
loth v. Bustamonte, 412 U. S. 218, 226–227 (1973) (explaining that the existence of consent must “be determined from the totality of all the circumstances”). That should be the end of this case.
III
Rather than simply applying this Court’s precedents to address—and reject—Wisconsin’s implied-consent theory, the plurality today takes the extraordinary step of relying on an issue, exigency, that Wisconsin has affirmatively waived.[6] Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here. In fact, in the state proceedings, Wisconsin “conceded” that the exigency exception does not justify the warrantless blood draw in this case. App. 66; see 2018 WI 84, ¶12, 383 Wis. 2d 192, 202, 914 N. W. 2d 151, 155 (“The State expressly stated that it was not relying on exigent circumstances to justify the blood draw”). Accordingly, the state courts proceeded on the acknowledgment that no exigency is at issue here. As the Wisconsin Court of Appeals put it:
“In particular, this case is not susceptible to resolution on the ground of exigent circumstances. No testimony was received that would support the conclusion that exigent circumstances justified the warrantless blood draw. [The officer] expressed agnosticism as to how long it would have taken to obtain a warrant, and he never once testified (or even implied) that there was no time to get a warrant.” App. 66.
The exigency issue is therefore waived—that is, knowingly and intentionally abandoned, see Wood v. Milyard, 566 U. S. 463, 474 (2012)—and the Court should not have considered it. See, e.g., Heckler v. Campbell, 461 U. S. 458, 468, n. 12 (1983); cf. Alabama v. Shelton, 535 U. S. 654, 674 (2002) (“We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it”).
Rather than hold Wisconsin to a concession from which it has never wavered, the plurality takes on the waived theory. As “‘a court of review, not of first view,’” however, this Court is not in the business of volunteering new rationales neither raised nor addressed below, and even less ones that no party has raised here. Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 8); see, e.g., Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S. ___, ___ (2017) (slip op., at 6); cf. Kentucky v. Stincer, 482 U. S. 730, 747– 748, n. 22 (1987) (declining to review a respondent’s previously unraised claim “[b]ecause the judgment [was] that of a state court” and no “exceptional” circumstances were present).
There are good reasons for this restraint. Ensuring that an issue has been fully litigated allows the Court “the benefit of developed arguments on both sides and lower court opinions squarely addressing the question.” Yee v. Escondido, 503 U. S. 519, 538 (1992). It also reflects a central “‘premise of our adversarial system’”: Courts sit to resolve disputes among the parties, not “‘as self-directed boards of legal inquiry and research.’” Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 408 (1995) (O’Connor, J., dissenting) (quoting Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (Scalia, J.)).
These rules, in other words, beget more informed decisionmaking by the Court and ensure greater fairness to litigants, who cannot be expected to respond pre-emptively to arguments that live only in the minds of the Justices. Cf. Granite Rock Co. v. Teamsters, 561 U. S. 287, 306, and n. 14 (2010); Yee, 503 U. S., at 535–536. These principles should apply with greater force when the issues were not merely forfeited but affirmatively “conceded” below, App. 66, and where, as here, the question is one of constitutional dimension. The plurality acts recklessly in failing to honor these fundamental principles here.5
IV
There are good reasons why Wisconsin never asked any court to consider applying any version of the exigency exception here: This Court’s precedents foreclose it. Ac-
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5 A related but distinct point: The issue on which the plurality resolves this case is not “fairly included” in the question on which the Court granted certiorari. See this Court’s Rule 14.1(a). The Court granted certiorari to answer “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.” Pet. for Cert. ii; accord, ante, at 4– 5. The answer to that question is no. Whether exigent circumstances nevertheless require that the warrantless blood draw be upheld is an independent issue. True, that issue might affect the same “category of cases,” ante, at 8, n. 2, but that would be true of all sorts of matters not fairly included in the question on which this Court granted certiorari. “Both [issues] might be subsidiary to a question embracing both—[Was suppression appropriate?]—but they exist side by side, neither encompassing the other.” Yee v. Escondido, 503 U. S. 519, 537 (1992). This Court applies a “heavy presumption against” venturing beyond the question presented, even when the parties ask it to do so. Ibid. Here, of course, the plurality ventures forth to provide guidance entirely of its own accord. One wonders why the Court asked for briefing and oral argument at all.
cording to the plurality, when the police attempt to obtain a blood sample from a person suspected of drunk driving, there will “almost always” be exigent circumstances if the person falls unconscious. Ante, at 1. As this case demonstrates, however, the fact that a suspect fell unconscious at some point before the blood draw does not mean that there was insufficient time to get a warrant. And if the police have time to secure a warrant before the blood draw, “the Fourth Amendment mandates that they do so.” McNeely, 569 U. S., at 152. In discarding that rule for its own, the plurality may not “revisit” McNeely, ante, at 8, but the plurality does ignore it.
A
The exigent-circumstances exception to the Fourth Amendment warrant requirement applies if the State can demonstrate a “compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U. S. 499, 509 (1978); see also King, 563 U. S., at 460 (The exception applies “when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable” (some internal quotation marks omitted)). The Court has identified exigencies when officers need to enter a home without a warrant to provide assistance to a “seriously injured” occupant or one facing an imminent threat of such injury, Brigham City v. Stuart, 547 U. S. 398, 403 (2006); when officers are in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U. S. 38, 42–43 (1976); and when officers need to enter a burning building to extinguish a fire, Tyler, 436 U. S., at 509.
Blood draws implicate a different type of exigency. The Court has “recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence.” McNeely, 569 U. S., at 149. To determine whether exigent circumstances justify a warrantless search, the Court “looks to the totality of circumstances” in the particular case. Ibid. “The critical point is that . . . the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.” Riley, 573 U. S., at 402.
In McNeely, Missouri urged the Court to adopt a categorical rule that the natural dissipation of alcohol from a
person’s bloodstream will always create exigent circumstances that allow police officers to order a blood draw without obtaining a warrant. 569 U. S., at 149–150. The Court declined. Even though the gradual dissipation of a person’s BAC means that “a significant delay in testing will negatively affect the probative value” of a blood test, eight Justices hewed to the traditional, “case-by-case assessment of exigency,” given that police will at least in some instances have time to get a warrant. Id., at 152; see id., at 166–167 (opinion of ROBERTS, C. J.); id., at 175 (“The majority answers ‘It depends,’ and so do I”).
In that way, cases involving blood draws are “different in critical respects” from the typical destruction-ofevidence case that presents police officers with a “‘“now or never”’” situation. Id., at 153 (opinion of the Court). Unlike situations in which “police are just outside the door to a home” and “evidence is about to be destroyed, a person is about to be injured, or a fire has broken out,” some delay is inherent when officers seek a blood test regardless of whether officers are required to obtain a warrant first. Id., at 171 (opinion of ROBERTS, C. J.); see id., at 153 (opinion of the Court). In the typical situation, the police cannot test a person’s blood as soon as the person is arrested; police officers do not draw blood roadside. Rather, they generally must transport the drunk-driving suspect to a hospital or other medical facility and wait for a medical professional to draw the blood. That built-in delay may give police officers time to seek a warrant, especially if the suspect is brought to the hospital by an officer or emergency-response professional other than the one who applies for the warrant.
Moreover, although “the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed, id., at 152, it does so “over time in a gradual and relatively predictable manner,” id., at 153. Thus, even though BAC evidence is of course critical for law enforcement purposes, “the fact that the dissipation persists for some time means that the police—although they may not be able to do anything about it right away—may still be able to respond to the ongoing destruction of evidence later on.” Id., at 172 (opinion of ROBERTS, C. J.). For one, there may well be time for police officers to get a warrant before a person’s BAC drops significantly. See id., at 172–173. In addition, assuming delays do not stretch so long as to cause accuracy concerns, “experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense.” Id., at 156 (opinion of the Court). Contrary to the plurality’s fear mongering, in other words, a small delay to obtain a warrant is hardly a recipe for lawless roadways.
Meanwhile, as the Court has observed, significant technological advances have allowed for “more expeditious processing of warrant applications.” Id., at 154; see Riley, 573 U. S., at 401. In the federal system, magistrate judges can issue warrants based on sworn testimony communicated over the phone or through “‘other reliable electronic means.’” McNeely, 569 U. S., at 154 (quoting Fed. Rule Crim. Proc. 4.1). In a sizable majority of States, police officers can apply for warrants “remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.” McNeely, 569 U. S., at 154; see ibid., n. 4 (collecting state statutes). And the use of “standard-form warrant applications” has streamlined the warrant process in many States as well, especially in this context. Id., at 154–155. As a result, judges can often issue warrants in 5 to 15 minutes. Id., at 173 (opinion of ROBERTS, C. J.). Of course, securing a warrant will always take some time, and that time will vary case to case. But “[t]here might . . . be time to obtain a warrant in many cases.” Id., at 172. Thus, as McNeely made clear, the exigency exception is appropriate only in those cases in which time is not on the officer’s side.
B
The reasons the Court gave for rejecting a categorical exigency exception in McNeely apply with full force when the suspected drunk driver is (or becomes) unconscious. In these cases, there is still a period of delay during which a police officer might take steps to secure a warrant. Indeed, as the plurality observes, see ante, at 13–14, that delay is guaranteed because an unconscious person will need to be transported to the hospital for medical attention. Such a delay occurred in Mitchell’s case, even more so than it did in McNeely’s. See McNeely, 569 U. S., at 145–146 (explaining that the police officer transported McNeely first to the police station and then to the hospital for blood testing, taking approximately 25 minutes); App. 63–64 (explaining that the police officer arrested Mitchell, drove him to the police station, placed him in a holding cell, and then transported him to the hospital and obtained a blood sample over the course of 90 minutes). Likewise, an unconscious person’s BAC dissipates just as gradually and predictably as a conscious person’s does. Furthermore, because unconsciousness is more likely to occur at higher BACs, see Martin, Measuring Acute Alcohol Impairment, in Forensic Issues in Alcohol Testing 1, 8 (S. Karch ed. 2008), the BACs of suspected drunk drivers who are unconscious will presumably be higher above the legal limit—and thus remain above the legal limit for longer—than is true for suspects who are conscious and close to sobering up. And, of course, the process for getting a warrant remains the same.
All told, the mere fact that a person is unconscious does not materially change the calculation that the Court made in McNeely when it rejected a categorical exigency exception for blood draws. In many cases, even when the suspect falls unconscious, police officers will have sufficient time to secure a warrant—meaning that the Fourth Amendment requires that they do so.
C
The plurality distinguishes unconscious drunk-driving suspects from others based on the fact that their unconsciousness means that they will, invariably, need urgent medical attention due to their loss of consciousness. See ante, at 13–14. But the need for medical care is not unique to unconscious suspects. “Drunk drivers often end up in an emergency room,” whether or not they are unconscious when the police encounter them. See McNeely, 569 U. S., at 171 (opinion of ROBERTS, C. J.). The defendant in Schmerber was hospitalized, yet the Court did not, in that case or in McNeely decades later, promulgate a categorical exception for every warrantless blood draw. That Mitchell was hospitalized is likewise insufficient here. Even if the plurality is right that every suspect who loses consciousness will need medical care, not every medical response will interfere with law enforcement’s ability to secure a warrant before ordering a blood draw. See McNeely,
569 U. S., at 153–154; id., at 171–172 (opinion of
ROBERTS, C. J.).[7]
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Because the precedent is so squarely against it, the plurality devotes much of its opinion instead to painting a dire picture: the scene of a drunk-driving-related accident, where police officers must tend to the unconscious person, others who need medical attention, oncoming traffic, and investigatory needs. See ante, at 15. There is no indication, however, in the record or elsewhere that the tableau of horribles the plurality depicts materializes in most cases. Such circumstances are certainly not present in this case, in which the police encountered Mitchell alone, after he had parked and left his car; indeed, Mitchell lost consciousness over an hour after he was found walking along the lake. The potential variation in circumstances is a good reason to decide each case on its own facts, as McNeely instructs and as the Court did in Schmerber. See McNeely, 569 U. S., at 149–151, 156. The plurality instead bases its de facto categorical exigency exception on nothing more than a “‘considerable overgeneralization,’” id., at 153, as well as empirical assumptions that the
parties not only lacked a chance to address, but that are
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- That is, a suspect can never prevail under the new rule if the hospital staff draws his blood for its own noninvestigatory medical reasons. But, again, the relevant question is whether the evidence is likely to dissipate before the police can obtain a warrant. This particular aspect of the plurality’s approach offers no help in answering that question. The plurality separately suggests that, because an unconscious person may well undergo a blood test for medical purposes regardless, its de facto categorical exception “could lessen the intrusion” of a blood draw. See ante, at 14, n. 8. But the fact that “people voluntarily submit to the taking of blood samples as part of a physical examination,” Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (slip op., at 22), does not make the process any less intrusive when performed at the behest of law enforcement. Although one piercing is of course less cumbersome than two, the privacy interests at stake go well beyond physical discomfort. See supra, at 4–5; Birchfield, 579 U. S., at ___ (slip op., at 23); McNeely, 569 U. S., at 148.
also belied by Wisconsin’s concession in this case.[8] If and when a case like the one the plurality imagines does arise, however, the police officers would not be “force[d] . . . to choose between” the “rival priorities” of getting a warrant and attending to “critical health and safety needs.” Ante, at 15. Of course, the police and other first responders must dutifully attend to any urgent medical needs of the driver and any others at the scene; no one suggests that the warrant process should interfere with medical care. The point is that, in many cases, the police will have enough time to address medical needs and still get a warrant before the putative evidence (i.e., any alcohol in the suspect’s blood) dissipates. And if police officers “are truly confronted with a ‘now or never’ situation,” they will be able to rely on the exigent-circumstances exception to order the blood draw immediately. McNeely, 569 U. S., at 153 (some internal quotation marks omitted); Riley, 573 U. S., at 391. In any other situation, though—such as in Mitchell’s and in many others—the officers can secure a warrant.
V
The Fourth Amendment, as interpreted by our precedents, requires police officers seeking to draw blood from a person suspected of drunk driving to get a warrant if possible. That rule should resolve this case.
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The plurality misguidedly departs from this rule, setting forth its own convoluted counterpresumption instead. But the Fourth Amendment is not as pliable as the plurality suggests. The warrant requirement safeguards privacy and physical autonomy by “assuring citizens” that searches “are not the random or arbitrary acts of government agents.” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 621–622 (1989); see id., at 621.
There is no doubt that drunk drivers create grave danger on our roads. It is, however, “[p]recisely because the need for action . . . is manifest” in such cases that “the need for vigilance against unconstitutional excess is great.” Id., at 635 (Marshall, J., dissenting). “Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified.” McNeely, 569 U. S., at 174 (opinion of ROBERTS, C. J.). For that reason, “the police bear a heavy burden” to justify a warrantless search like the one here based on “urgent need.” Welsh v. Wisconsin, 466 U. S. 740, 749–750 (1984). The plurality today carries that burden for a State that never asked it to do so, not only here but also in a scattershot mass of future cases. Acting entirely on its own freewheeling instincts—with no briefing or decision below on the question—the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment. With respect, I dissent.
1
GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6210
_________________
GERALD P. MITCHELL, PETITIONER v. WISCONSIN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN
[June 27, 2019]
JUSTICE GORSUCH, dissenting.
We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees—by the very act of driving—to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed. Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.
[1] Wisconsin also authorizes BAC testing of drivers involved in accidents that cause significant bodily harm, with or without probable cause of drunk driving. See Wis. Stat. §343.305(3)2 (2016). We do not address those provisions. And while Wisconsin’s and other impliedconsent laws permit urine tests, those tests are less common, see Birchfield v. North Dakota, 579 U. S. ___, ___, n. 1 (2016) (slip op., at 6, n. 1), and we do not consider them here.
[2] See NHTSA, Alcohol and Highway Safety: A Review of the State of Knowledge 167 (DOT HS 811 374, Mar. 2011).
[3] Although the Wisconsin Supreme Court referred to the lapse in time between the arrest and the blood draw as lasting “approximately one hour,” App. 11, the state appellate court explained that Mitchell was arrested around 4:26 p.m. and that the blood draw took place at 5:59 p.m., id., at 63–64.
[4] The Wisconsin Supreme Court rephrased the certified question, but, like the Court of Appeals, it recognized the State’s concession that the exigency exception did not apply and, accordingly, did not consider the issue in reaching its decision. See 2018 WI 84, ¶12, 383 Wis. 2d 192, 202, 914 N. W. 2d 151, 155.
[5] The Court in Birchfield concluded as much even while acknowledging that, in some cases, the suspect would be unconscious and thus unable to perform a breath test. 579 U. S., at ___ (slip op., at 35) (“It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is
unable to do what is needed to take a breath test due to profound
[6] The plurality criticizes me for supposedly suggesting that today’s decision is based on a “case-specific showing of exigent circumstances.” Ante, at 8, n. 2. But I acknowledge that the plurality does not go so far as to decide that exigent circumstances justify the search in Mitchell’s case, perhaps because the facts here support no such conclusion. See infra, at 16. Indeed, rather than confine itself to the facts and legal issues actually presented in this case, the plurality instead creates a new de facto categorical rule out of thin air. The plurality does so without any evidence that such a rule is necessary in all, or even most, cases. See infra, at 16–17. That the plurality reaches out to determine the rights of all drivers, rather than just Mitchell, makes today’s decision more misguided, not less.
[7] The plurality’s new rule, in addition to requiring a defendant to prove that the officer had no time to get a warrant, also appears to require the defendant to show that his blood would not have been
drawn absent law enforcement’s need for a blood sample. See ante, at
[8] In addition to offering a justification for Wisconsin’s warrantless search that the State itself has disavowed, the plurality also relieves all States of their burden to justify similar warrantless searches. Until now, the Court has said that “the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U. S. 740, 749–750 (1984); see Coolidge v. New Hampshire, 403 U. S. 443, 455 (1971). Today, the plurality turns that presumption on its head in favor of a new one that “almost always” authorizes the police to conduct warrantless blood draws even in the absence of an actual emergency. See ante, at 1.