argument first this morning in case fourteen fourteen sixteen burchfield vs north dakota and the related basis please the court the fundamental problem with the statutes at issue in nice three cases is that they make it a criminal offense to assert a constitutional right under the laws of north dakota and minnesota the person who is stopped on suspicion of impaired driving is obligated to take  jail criminal sanction were three years suspension for you know which is obviously good what works will there be a difference i think the fundamental distinction that governs the outcome of this case we think is that is that between the state taking away a benefit that it didn't have to give you in the first place which is what the court addresses and the unconstitutional conditions wind of cases and the situation here was the state is saying by feel that you are subject to a criminal penalty from an acquittal penalty for asserting a constitutional right honor for this reason i think that in the unconstitutional conditions one case of what the court has said is the state has given someone a benefit that he did not have to give in the first place and that state is doing when it takes that benefit when you say you're back in the position that you were to begin with there is no surprise i don't think that's attached to what the individual is doing and the court in those cases has said we will look to see the practical effect of the combination of the benefit and the condition to see whether or not the two parts roger first as to what's going on in this case where there is nothing like an on the form you know what's happening here is the way that the statute operate if you if you drive on the roads in north dakota and minnesota you are automatically irrevocably subject to stop everybody at the border so someone who isn't from that particular state who hasn't signed anything is still subject to the same criminal and oh well that's my next question but let's talk with just the state the state and just people are told and actually aware that they are being told that if they drive they are consenting to be searched and they're consenting to submit to the chemical test i think whether speaking  depends on whether or not there is consent to not one not but i thought you said well of course there is coercion because you can't survive in north dakota without a car which i'm happy to postulate but but what is what is the basis for that that right of analyzing this case we have to assume that states could put him but people from driving period i think that's right ok now as far as the border goes you know want to understand stopping people at the border what if there's a sign at the border but says anyone who uses the state roads consents to you know blood alcohol testing if they're pulled over i guess that would that would not be this case because in this case there is no suggestion that these defendants at any idea that these statutes existed let alone that they were voluntarily surrendering their right to assert the fourth minute but in the hypothetical that you suggest i think it would be a difficult case for the state to make because the state's obligation would have to be to carry the burden of showing that the defendant right i mean if i mean obviously it's not a realistic contention but that's one of the hypothetical sort i'm trying to get to the basis of it seems to me that the flexibility that the state has in this situation depends upon what rights  motorist hands and i understand the fourth amendment argument but it does seem to me that if you're making it unconstitutional conditions argument it is prudent to determine what authority the state has unity of that that's right but let me be very clear i think that there were two has nothing to do with the conditions because as i say these in these defendants are not shown to have been aware that they were subject to a condition at all but we're interested in other possibilities and so if you assume that the state can consenting to a blood alcohol test perhaps under certain circumstances let's say this is done in writing at the time when the person applies for the license so it's not it's not just implied  does that what is different about that situation at from a number of other situations that i can think of for example conditioning a license to operate and interstate passenger train on  a blood alcohol test in the events of reasonable suspicion the person is operating the train under the influence of alcohol or the same thing with someone who was operating aircraft yes there were a law that said that if you want to enter certain government buildings such as this building that the condition of entering is consenting to a search and you have to sign something you have to go through the magnetometer and then if a person got through that and that there was reasonable suspicion that the person had smuggled in some kind of a weapon person would be subjected to a search what would be the difference between that situation and the situation i think there would be a number of distinctions one would be i think that at least some of the hypotheticals like that you offer the training hypothetical example that's the scanner case there is a special needs exception to the requirement applies and so there is no ability you know on the part of the individual to resist the search and there is no warrantless there's no requirement for want in the first place i think entering the government building with cases don't you just lose the benefit you don't come into the there was a telling showing that there was a measurable increase in traffic fatalities if this was not an for which they would say this is a special condition and therefore you must consent and the bottom line is and that means there's no constitutional the special needs kid situation there is no fourth amendment i find it wouldn't fourth amendment principles there is no fourth amendment in title maybe maybe i misunderstood but i thought that was the whole thrust of justice a legal question why can't we say that the special needs in the railroad case i think what we're saying is that the need for safe transportation on the train to protect the innocent people there is compelling enough that that it falls within the special needs exception and i'm again i'm not not sure why that analysis wouldn't apply here i suspect i don't know i suspect more people die from drunk driving accidents than from train accidents and so the special need would seem to be just this is compelling but i but i think that that was not the circumstance where a search is being conducted that a want is required that is the presumption on unless there's a presumption but the there are many ways of analyzing this case so let me try to get you to focus on one that doesn't have to do with consent or any of these differences that you many of them that you've been discussing one way to analyze it is you just ask there's no such thing as an exception to the fourth amendment the question is whether the fourth amendment requires a warrant in these circumstances and it seems to me if it does then you want it and if it doesn't state has considerable freedom it couldn't help people in oil but it might be able to do it all right so that's how what i'm thinking now the question is and i don't find this very much in the brace and it surpris and what you break into it is carbon dioxide which is going to go into the environment anyway you're not going to keep it and moreover it takes place quickly so the evidence hasn't disappeared a blood test you have to go somewhere else there is a risk involved time elapses so you lose some of the evidence and it's painful in some instances so i made me think isn't there a difference so in capsulated in what i'm search is necessary to preserve officer safety or to preserve evidence well i think that this would be based on the notion that it's necessary to preserve evidence first a notion which justice prior suggested that this is about  an invasive as a search can possibly be and so that given the two things together it is useful to preserve evidence and that it is extremely an invasive search that we can assimilate there's something very different in the level of invasion and certainly it's appropriate to look at the invasiveness of a search when deciding whether to do a search incident to arrest i mean if if that weren't true we wouldn't have talked about how much you could get off of the cell phone and riley if that weren't true we would allow people to do body cavity searches when they do search incidents to arrest so it seems to me that the court can look at the level of invasion incident to a search when deciding whether a dioxide is dissipated and i didn't say extraordinary way i said you know you blow hard into a little strong like thing that's connected with what looks like a cell phone so using the word significant or not doesn't help me i could undermine in many cases the evidence that if you are looking for that now that that's a question of several factors and it doesn't just doesn't help you to say significant or not significant that that seems to when every time he drank four bottles of whiskey you could look in his eyes and that would be intrusive it all i mean what you're looking for doesn't have much to do with the intrusion  drunk think before they take you when and take you off the road they are doing this test as part of the probable cause evaluation is there enough probable cause to bring you it there maybe independent of it but sometimes it's the the breath test exonerates people and they go on their merry way so why are we thinking that it is only evidentiary i do think the blood test is by the way once you arrested someone you've decided to take them off the road and the road is now safe from that person but and that is which ok i'm asking because i'm curious and think that might be relevant and you may not know so you don't know so you don't know i don't know your honor and i think it would be to answer the question how many people who are stopped in a preliminary way or then are arrested for inches from the person's mouth and wait for the person to breathe and that would be sufficient to measure blood alcohol that would you say that's the search i think that i could not just search i think it would be a very different situation all right so if you compare that with what what has to be done here what something from deep within your body to be tested by the government people would find that more intrusive than having an officer look in your backpack i think it doesn't seem it doesn't seem realistic the reason why people don't want to submit to a blood alcohol test is that they don't want their blood alcohol measured it's not that they designed to get at the same evidence and you're right that this is a patient of the evidence works in exactly the same way but you're suggesting that we should close our eyes to the fact that there is a very significant difference in the degree of invasiveness even assuming th are searches which i have to say you know i think that we've held that and so blowing is a search there's no question about that but there are structures and then again the research is there are more invasive searches and less and base of searches sure how much more there is to say about it but i think that the reality is when a foreign object is constructed into a person's body and they are asked to expel something from deep within their body to be tested by the government that's right on the face of it it's an intrusive proposition something that most people regard so it may be easier and and i hope that's something we have not been analyzed or thought about and we certainly are not challenging it that it is here and so it would be i think a number of people but i guess the question i asked i mean i agree with you that you do need a recognized exception and that we should not feel good about making up new exceptions willy nilly the question is why isn't this a search incident to arrest test if arrested for drunk driver the court has held that this is a valid board and the states may enforce it with the imposition of significant consequences including license revocation and the use of test for fuel as evidence of criminal proceedings what about another bargain if people find that texting while driving is becoming an increasing problem and so when you get a license you're give implied consent for the officer to look at the texts or whatever they can look at on your cell phone to make sure you know a minute ago you were texting somebody one driving is would that be acceptable and in your rationale i think it's highly doubtful your honor i think there's many differences between that and what's going on  here first of all the interest here is a uniquely compelling interest when i assume i don't know what the statistics are going to say it wouldn't surprise me if there is as many accidents caused by people texting while driving is drinking while driving it even still  d so there is probable cause to believe that this person was driving drunk i don't so this is part of a very tightly right there on the on the people that are causing the problem i don't i don't see that that's a difference with respect to my hypothetical as the court indicated most recently in the in the cell phone case that there's that's separated one level over and that's much more interesting to go into that there's not the same interest with the dissipating of the evidence that there is in the case of the drunk driv with that but what's happening here is the states are really in a terrible bind the situation here if states of left only with administrative kelley's for fusil then what happens is it creates a loop around the system that makes it very very difficult for you can get a warrant i mean you're not left with that you don't want the administrative expense of calling a magistrate or setting up a system the issue for us is do we dispense with a very important requirement in our law that before you search particularly the inside of a person with a needle or in an intrusive  you get a warrant i'm not sure why you think you're left with nothing but your two things one we think maybe it was helpful for us because what the court the court was concerned about there was first blood draws over the objection of the u s d a and those don't happen on the system and that's the second part of mcneil is that mcneely pointed to these types of statutes and said these are alternatives that don't sanctions or very different thing and scope and in a fat you're putting someone in jail you're not taking just their license criminal penalties are different we don't dispute that and that is really just the essence of the question of the table here given that the court has already endorsed these types of conditions being opposed to the privilege of driving and isn't endorsed significant consequences being used as an unfortunate mechanism could you do something about what the practical consequences of requiring a warrant for every breathalyzer would be in a state like north dakota i when my picture of north dakota is that it's not like new york city you don't have a court going on all the time and so how many it's not that there are judges or magistrates on on on duty all the time in north dakota in fact they're considered what is known there as on so they're not on duty but they may be there reachable somewhere typically by phone but it often takes a while especially in noted says in the a c d l brief is that in wyoming it takes five minutes and in montana takes fifteen minutes and long does it take in north dakota and north dakota in the larger jurisdictions where there's a little bit of a quicker process where they use more telephon and the arresting officer can go directly to a magistrate and those systems minus things it typically takes about a half an hour to an hour but in the smaller jurisdictions works more world works often times harder to get somebody on the phone and in there the process is different in large part it's a lack of resources and manpower there's not as many people available to cover all the times and so that excuses you from a constitutional requirement we're now going bend the fourth amendment which i always thought started on the presumption that we favor the arts we don't just favor but since many jurisdictions seem to manage it what where people are asking us to try to get some sense of the real world harms here so let me just ask you to assume something assume that you actually could point into practice a system which got you a warrant in ten or fifteen as putting them in jail for being drunk and driving so what is it that justifies doing away with something as important as the fourth amendment warrant require again if you can do it in fifteen minutes again it's not that the status quo to get rid of what we call i think it's helpful to know what it's trying to do is get evidence of someone this is a pure law enforcement need this has nothing to do necessarily with the safety of the community because the person's been taken off the road and we presume that you can suspend their license so this is something more very much a public safety interest and it requires some explanation here but the problem here is that the states really cannot effectively north dakota particular cannot effectively enforce its programming was without a pill before fusil it actually has to have it because the way what we're asking because if you could get a warrant easily in every case i mean then i'm struggling to figure out what your interest is in having the kind of law that you have so but maybe i'm just not understanding something so so it really is  a question suppose you could set up a system where somebody could be reached within ten or fifteen minutes and they would in almost all circumstances give a warrant and then a couple say no i don't think you've satisfied the requirements right so  asking about your practical means and then you know we'll figure out what is and what isn't consistent with the fourth amendment but your practical again the point here is that the one  has to be a next that it want it's not necessary it takes too long we're some think suppose it takes fifteen minutes what then what you're asking for an extraordinary exception here you're asking for us to make it a crime to exercise what many people think of the constitutional right there's some circularity that you can we can point to no case but you asked that so we have to show there's an exception that there's a necessity for the exception and you're just not answering the question about whether or not in the in the wake of a recent decisions over the last three or four years warrants have been expedited in many cases and why and if they have been able why that isn't an answer to your argument of us want an answer in terms of law we want to know what practical fact the practical fact is is it possible that you could get a warrant in thirty seconds you have a problem the cell phone has a big w the policeman a voice comes around and it turns what's the problem you explain it in fifteen seconds and they say ah i got it ok you got you're right or there's something unusual and he says no ok now if that were in front does make a difference here and why does it make enough of a difference well there's a couple reasons but i want to step back a because the implication of a fourth amendment right is the start of the analysis it's not the end of the analysis because when  unconstitutional conditions context where there's a bargain here in the court it's always a lot of states of them pose bargains to impose conditions on the use of the public roads in this manner for nearly one hundred years the court has allowed this is a this type of thing as a mechanism to impose conditions how long so it's really just the two and it's roughly fifty fifty over the course of about a year six thousand yes well different kind of just factual question which is how many of these are done right side how many are taken during a police mr chief justice and me please the court i'd like to follow up on some of the questions of the practicality of search warrants in these situations and having grown up twenty miles from the north dakota border and attending college in the far more hit area i'm very familiar with what the realities are in the rural area and yes we it may be possible to get a search warrant in every case but if that's what this court is we're going to require in minnesota we are going to be doing warrants in blood drives in every case and that is not what this court  because why why would i now as a police officer cause any more delay because if there is going to be a delay getting that search warrant and why would i delay by taking someone to the police department because that's where most of these tests are being conducted in minnesota north dakota they're not done on the side of the road or take a breath breath yes and battered blood you have to go to the hospital ok so i see minnesota and north dakota in a lot of these jurisdictions there's only one officer on duty i grew up in a town of two thousand twenty miles from the north dakota border there was only ever one officer on duty and that hasn't changed the other problem there is not a hospital located in every jurisdiction in minnesota in north dakota and for example in the town that i grew up in the nearest the nearest hospital would actually be in f were somehow missing in this argument i think what people are trying to figure out at least me is if first get the blood test the blood test is a separate matter in my mind i'm thinking about the breath test do you does the constitution require you to get a blueprint before you administer the law the breath test other things being equal and in the constitution we means in that direction so i ask you why not and now you've told me all the things that cut against you you say well before we give the breath test we take him to the station and so then that seems to take fifteen minutes and in the meantime why can't you just i don't i don't know how to explain it or not i'm not talking look at all i'm talking practical fact if you're prepared to come back and say to me you know it we have to get a warrant fifty percent of the drunk drivers are never going to be caught oh listen to that if you come back to me and say you know what you say the word is required and it will mean that four hundred policemen have to spend ten seconds more than they'd otherwise spend on a telephone i say well that's a point but not that much of a point now you see i'm trying to get a fact well and i don't have those type of statistics to answer we're going to ask a different maybe a different way of asking a similar kind of question even given that said and this was with respect to a blood test but the chief justice is opinion said look if there's twenty minutes between the time that you are start and the time that we can get you to a hospital to get a blood  draw and you can get a warrant in that twenty minutes then yes you have to go get a warrant and that's twenty minutes or so at the very least why wouldn't that be the case you know if if you if all of these things i mean i have to say when i originally thought about this case i had in my mind roadside stops but in all of these cases you're actually driving these people to a station house so why can't you get at least what the chief justice said in mcnally which is ok if you can get a warrant within that time you have to get a warrant within that time and you know and speaking on behalf of minnesota and it's very clear minnesota treats and i don't necessarily disagree with you we're going to sort of up here as kind of the alternative argument minnesota specifically treats blood tests differently than breath we specifically do and our court has recognized that so for example under the implied consent line minnesota if you are in order to get a blood or urine test you have to you have to offer both and so we do treat it differently and the case in minnesota treated it differently in the bernard case it's very clear and they very clearly stated that in the ruling that they weren't going to address blood or urine and they will be shortly because there are two the police of homes where the police tell the the homeowner were applying for a warrant and the homeowner says oh then i got to do it and so the number of warrants are much less because of that because they know they're going to get a warrant so if you can put a system in place for a warrant and you tell the person if you don't take the warrant you're going to if you don't do the blood the breath test you're going to be charged with obstruction what are you losing out but what we're really losing out is the enhanced ability that that is that if i can charge the d w i or refuse all and i'm only left with an obstruction i can no longer use that event to enhance any future d w i that same person might commit so  permit people to say yea or nay when a warrant this person if they don't comply now they're charged with obstruction and they'll be consequences to obstruction i but but not the same not the same consequences that it would be if it was a d w i or refuse or that's because you choose not to penalize obstruction at a higher level that's your  choice we're now creating an exception to the fourth amendment because of your choice well and it's minnesota's concession that a warrant isn't necessary i appreciate that but i'm assuming if you can three things this morning first address the real world consequences second what explain why i think a bright line criminal rule is at odds with common sense the u s code and this court's precedent and third explain why it would be a mistake to have a war i think it's critically important that this court not assume that once you are available twenty four seven that is not the case in the real world the court knows that from the studies that are in the record the north carolina example is for is one what the what the study did there was compare three jurisdictions that were able to put in a world record against the nine jurisdictions that for various resource reasons availability of judges reasons and other reasons were unable to do it the experience of the park police i can tell you available twenty four seven a matter of priorities in federal court you may not get in the southern district of new york you may have twenty four seven availability for terrorist attacks but you may not have them for routine drunk driving and so even in d c and virginia where you may have it for fatal crashes it's not significant dissipation but that you can back calculate if you get it but there is a delay in getting the one at times in the melbourne case you can get it as soon as fifteen minutes but a word can take as long as a half hour worth almost ninety minutes or two hours that's it page thirty seven of the study so i think it would be a big mistake for this court to decide the case i was going to say mcnealy footnote the court listed thirty three states that have electronic warrants which is not the same as twenty four seven judicial availability but that leaves seventeen states that don't have it and so i think i really think it's a mistake for the court to decide on their own why and more every year aren't there i mean we're now up to over forty aren't there definitely are more and more every year but again it i think that if the court is doing the rule based on the idea that these warrants are constant always available there's a serious risk that in that once you require that that then the evidence is lost particularly in a breath test in the jurisdiction where you can't get a warrant so if i could then turn  to the bright line criminal rule that i understand to be the court petitioners case it really this court said that the state make condition driving on public roads and they require as a condition that a motorist arrested or detained for drunk driving agree to or be a c testing and that the state may impose significant consequences on the subsequent refusal so the question is does the constitution impose a bright line rule against criminal penalties even when lesser sanctions  insufficient to overcome the natural incentive that many drivers will have not to abide by that condition as a matter of common sense i think that doesn't make sense the idea that you can only withdraw a government benefit has major as for example if general's office for contacting or communicating with yes g s office on an official matter that is punishable under eighteen u s c two sixteen but up to a year in jail that is a criminal penalty as a condition on my employment that is not the only situation eighteen u s c six zero three criminalize this contributions by government employees forty two u s c fourteen one thirty five criminalize a probationers refusal to give d n a the idea that there is a bright line between  administering of sanctions and criminal sanctions that first is the government to rely only on withdrawal of the benefit is just not the case that's reflected in this court case law back in nineteen twenty seven in the stevenson case which is discussed in the brief that was a situation in which texas had conditioned driving on the texas roads and as a restricted that by by imposing all sorts of promoting requirements now in that  as unconstitutional interference with a private contract and although the other side identify stevenson as a case that did not have criminal penalties and that was just withdraw the benefit i think if the court looks we read the case differently and i think if the court looks at page two sixty it will say that the see that the texas statute imposed criminal penalties and so again the idea that the only thing the government can do to win is withdraw a benefit in the context of a unconstitutional condition and cannot go  today to the core of it which is to enforce the prohibition really makes it so i think one of our concerns is that driving is so essential for so many people that it's really different than opting to work for the solicitor general through i take that but it's a dangerous activity with a drunk driving two tons of steel down the road and the courts said you can condition driving that is a reasonable condition the state can impose helpful answer and your time is right but i'm going to because even with the going generally the right of course it provides the function of having a neutral magistrate look at the evidence but generally with a warrant then the officer can force compliance that's part of what the warrant allows that's not possible in the breath context what this don't care i'm not going with you when i mean that is subject to criminal sanctions as well so you are it might well be but i just think it just it shows a little bit why the use of the right doesn't doesn't quite map on the way i think in a usual search context i think the other problem that you have is because you can't force compliance you might have a statute another statute later today to do it but because the consequences are not as clear what it will do is drive the state to the blood blood testing which one can force but that's a very situation that this court recognised in never and that the states here have told you i think in inconsistent with novel is a situation that states don't want to be driven to to a first blood draw on a non consenting what about the it is assuming for argument's sake that you can take a breathalyzer without a warrant what need is there for for a blood test without a warrant i mean why isn't it a minimum that if you can have a blood test you need a warrant so you want to one difference of course is that the blood test does if the officer has a suspicion that there's other than alcohol at issue the blood test is critically important if there are drugs a divorce it's important but it's going to time you got to get to the are risks involved it's a more serious intrusion and so the requirement as we said could be pretty minimal you go to you during a fifteen twenty minutes he's going to the hospital go get a warrant nobody's saying they can't do it the question is whether they have to have a there is no bright line in criminal sanctions because it's critically important outside the blood context and where you need the drug evidence thank you thank you counsel three minutes mr ruff no thank  minnesota people who drive on the roads are automatically reputably or lose their fourth amendment right to resist want plus churches there's no consent you know there's no knowledge that's been demonstrated to the parties defenders so the  proposition that's being offered by the government is that states can simply attach to any benefit that is provided to individuals that the surrender of a constitutional right whether or not you know that they're going to do it and in the future a criminal penalty can be attached to the exercise of the constitution that's quite a remarkable proposition i i think that the examples that mr caution going offered of criminal penalties that can be attached to it because having a place for example or situation in which there actually is no first minute right those are cases in which there are on what the government employees can do so they would be no constitutional problem they are second on practicalities weapon discussion about the nature of one or two how readily available they are if the court reveals the studies by the national highway transportation safety straight in which it looked at this extensively it will find as a crass to some extent to me only that warrants hard almost universally available on quick and efficient terms because groups that fight on our side the case demonstrate that this is true in vast majority of cases there are more cases more states that the officers on the field the magistrates and the judges who handle these cases the prosecutors almost universally praised want to process a something which is going to be effective that drives down test refusal that makes confrontations between officers tasks that the court so far as i'm aware has never said that once there is a search that's taking place in a law enforcement investigation that one can cut out certain character certain certain types of procedures were that they have essentially very very similar characteristics they involve similar personal degrees of personal intrusion and i do not think that there is any supportable reason for treating the two differently for purposes of the want one if there are no further questions your honor thank you counsel