Reasonableness And Fourth Amendment Analysis

B. WARRANTLESS AND NONCONSENSUAL BLOOD TESTS ARE PRESUMPTIVELY UNREASONABLE AND MUST BE EVALUATED BASED ON THE TOTALITY OF THE CIRCUMSTANCES

Reasonableness is the touchstone of Fourth Amendment analysis. Whether a search is unreasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself,’” and entails “‘balancing its intrusion on the individual 's Fourth Amendment interests against its promotion of legitimate governmental interests.’” Against this backdrop, at least one court has held that “a warrantless blood test, performed without consent, is presumptively unreasonable unless the state actors involved had probable cause and exigent circumstances sufficient to justify

Several states, for example, “lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order.” In addition, “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.” For these, the portion of N.D.C.C. §39-20-01 authorizing warrantless and nonconsensual blood tests cannot withstand constitutional scrutiny. This is true, a fortiori, because N.D.C.C. §39-20-1 provides law enforcement with less intrusive means by which to establish probable cause that a motorist is driving while

D. LAW ENFORCEMENT OFFICERS HAVE LESS INTRUSIVE MEANS AT THEIR DISPOSAL TO DETERMINE IF A MOTORIST IS DRIVING WHILE INTOXICATED

In Nelson v. City of Irvine, the Ninth Circuit invalidated a strikingly similar law permitting warrantless tests of a motorist’s blood, breath, or urine. In so holding, the Ninth Circuit explained that “[w]hen a DUI arrestee consents to undergo a breath or urine test, the government has available to it an effective alternative to a blood test as a means of obtaining the same evidence.” Furthermore, “breath and urine tests are equally effective as a blood test in determining whether a suspect has violated the DUI law.”

Although equally effective, breath and urine tests are far less intrusive than blood tests. In Skinner, the Court stated:

Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the employee 's bloodstream and nothing more ... [B]reath tests reveal no other facts in which the employee has a substantial privacy