If you are planning, like many of us, to ring in the new year in the usual, festive manner – while enjoying a few libations, you will likely want to consider first how you plan to get home from the shindig. If you are one of the seemingly few who actually do plan ahead for just such an occasion, you have a number of viable options for your return trip.  Folks in most major cities around the country now have Uber, the Scooter Guy, and the old fashioned Yellow Cab options, among others, to choose from when the fun is over and driving home isn’t an option.  If you are not one of those “planners,” now may be a good time to make an early New Year’s resolution to become one.

However, even when one believes driving home is an option, there is always the possibility that one might find oneself – for any number of reasons – sitting on the side of the road in front of a squad car. In that situation, the looming question on the minds of many is “what should I do if the officer asks me to submit to a blood-alcohol test?”  There are plenty of “online experts” (read: DUI attorneys with websites) who provide the advice (pro bono, of course) that one should always refuse any blood-alcohol and/or field sobriety testing.  At the same time, others (NOLO’s “Driving Laws” website, for example) suggest that, except in a few very specific instances, you should almost never refuse such tests because the penalties in certain states for refusal are identical to those for driving while intoxicated due to the “implied consent” statutes like Missouri’s §577.020.1.

For instance, in many states, you can lose your license for one year for simply refusing a breathalyzer test. And, as if that weren’t already a deterrent for refusing the test, in addition to losing your driving privileges, the evidence of your refusal can (and obviously will) be used against you in court to argue that you refused the test because you knew you were intoxicated, and this could lead to a DUI or DWI conviction – even without objective evidence that your blood alcohol content (“BAC”) was over the legal limit.  Even more concerning is that some states – thirteen to be exact: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia – have taken the penalties a step further by going so far as to make it a crime to refuse such tests even in the absence of a warrant – a crime that carries with it jail time – and this, many argue, has crossed the line into the realm of violating the fourth amendment protections against unlawful searches.

In fact, this is a question that SCOTUS granted Cert on earlier this month and will soon decide in three consolidated cases from North Dakota and Minnesota – Birchfield v. North Dakota, Beylund v. North Dakota and Bernard v. MinnesotaSCOTUS Blog has recently put the three cases on its watch list and we agree that the Supreme Court’s decision here could have significant impact on the “test refusal” laws throughout the country. The Petitioner in Bernard, who was arrested on suspicion of drunk driving after he got his truck stuck in a river, was later charged with first-degree test refusal which, in Minnesota, carries a mandatory minimum sentence of three years’ imprisonment (yes, I said three YEARS).  Bernard argued that imposing criminal penalties for refusing to submit to a warrantless breath test violated the Fourth Amendment, but a divided Minnesota Supreme Court disagreed, reasoning that a warrantless breath test would have been reasonable in Bernard’s case as “a search incident to [his] valid arrest.”  Bernard claims that this ruling is “shockingly wrong,” and “untethers the search-incident-to-arrest exception . . . from [its] rationale.”

The Petitioner in Birchfield failed a field sobriety test administered after he drove his car off the road, and similarly refused to submit to a chemical blood-alcohol test. The North Dakota Supreme Court affirmed Birchfield’s conviction on the grounds that first, attaching criminal penalties to test refusal in this context is, as a general matter, reasonable; and second, that the entitlement to drive may be conditioned on the driver’s “deemed agreement to consent to a chemical test.”  Commentators seem to agree that it is more likely that the Supreme Court has granted Cert in these cases to overturn them than to congratulate the minority of states that criminalize a driver’s refusal to submit to warrantless search on a job well done, but until the decision comes down, we can only speculate.

Ultimately, in light of the fact that in most states – regardless of the status of the pending SCOTUS decision in the “B3 Trifecta” (Birchfield, Beylund, and Bernard) – the best case scenario for refusal to submit to blood-alcohol testing will be the loss of one’s driving privileges for at least one year and at least an attempt by the prosecutor at proffering the refusal as circumstantial evidence of guilt at trial. The smart advice is also the most obvious… don’t drink and drive.  However, if you do, by some cruel twist of fate (or a temporary lapse of good judgment), find yourself in the unenviable position of having to make the choice as to whether or not to submit to blood-alcohol testing in one of the 13 states mentioned above, you just might be looking at a Federal case, so you may want to get that Uber app fired up now and make sure that you don’t spend 2016 taking a cab to work every day.  Happy New Year!