Washington Law Review Online


Kylie Fisher

First Page



Statutes that criminally penalize suspected drunk drivers who refuse to submit to testing of their blood alcohol concentration emerged in a number of states as a way to better enforce implied consent statutes that require drivers submit to such testing. In Birchfield v. North Dakota, the Supreme Court held that statutes that criminally punish individuals for refusing a blood test were unconstitutional but upheld criminal refusal statutes regarding breath tests. Much of the reasoning in the majority’s opinion stemmed from a shallow perception of the invasion that breath tests pose to individual privacy interests. Justice Sotomayor’s dissenting opinion noted that where search warrants are reasonably available, a state’s governmental interest in collecting evidence and promoting safety is lower than the individual privacy interests at stake. This Comment is about post-Birchfield strategies for challenging statutes that criminalize refusal to submit to a breathalyzer test.

This Comment approaches the issue from a novel, bottom-up approach that argues individuals will be most successful in challenging criminal refusal statutes in state courts under a substantive due process framework that implicates state constitutional rights. This Comment also sheds light on the underreported and significant issue of criminally punishing individuals whose language barriers or hearing impairments prevent them from fully understanding the consequences of refusing a breath test. While drunk driving is undoubtedly a severe problem that requires regulation, the goal should be to preserve fundamental liberty interests with viable legal and policy alternatives that can effectively curb drunk driving rates.