Should breathalyzer refusal land drivers in jail?

Drivers in several states are challenging the constitutionality of laws that make refusing to submit to an alcohol test a criminal act.

The US Supreme Court heard arguments Wednesday about alcohol testing laws in North Dakota and Minnesota, but there are at least 10 other states whose similar laws could hang in the balance, including Florida, Rhode Island, and Virginia.

Plaintiffs argue that these tests constitute violations of the Fourth Amendment, which prohibits unreasonable searches and seizures. Some critics of required testing say that police should have to obtain warrants

The White House supports the states, which upheld these laws in state level legal challenges, arguing that obtaining warrants is not a perfect process.

Warrants are not necessarily "available 24/7, that is not the case in the real world," said US Deputy Solicitor General Ian Gershengorn.

However, several justices questioned states' decisions not to simply phone in for warrants. Justice Stephen Breyer noted that police are able to obtain warrants by phone in less than 15 minutes, on average, in Montana, and five in Wyoming.

Both Justice Breyer and Justice Anthony Kennedy pushed lawyers for North Dakota and Minnesota to explain why their states did not follow this procedure. State lawyers repeatedly demurred. North Dakota's attorney Thomas McCarthy, told the court that consent to alcohol testing is part of an unwritten bargain between the state and drivers in exchange for the ability to use state roads.

Justice Kennedy also questioned why states would not simply choose the expedited warrant process to forestall Constitutional challenges.

Minnesota's attorney, Kathryn Keena, told the court that warrants may be more difficult to obtain in rural areas with fewer judges and county resources. She added that even if police procure a warrant, many drivers might simply refuse to submit to testing, opting to face warrant obstruction penalties rather than charges of driving under the influence.

The court also debated whether only blood tests should require warrants, as breath tests are far less invasive. Justice Elena Kagan called breath tests, "about as uninvasive as a search can possibly be."

Lawyer Charles Rothfeld, representing drivers who challenge the state laws, disagreed, saying that breath tests were as invasive as blood tests.

This case came to the Supreme Court after North Dakota and Minnesota upheld required testing laws in a handful of cases.

In the Minnesota case, driver William Bernard was arrested and taken into custody, but refused a chemical test. In Minnesota, refusal to submit to a blood test carries a mandatory minimum sentence of three years in prison.

In North Dakota, driver Danny Birchfield challenged state law after he failed a field sobriety test and refused other tests. Another driver, Steve Beylund, was arrested under suspicion of drunk driving and accepted a test. The state refused to suppress evidence from that test.

In North Dakota, refusing chemical tests is a misdemeanor for the first offense.

This report contains material from the Associated Press.