The US Supreme Court granted review on the topic of breath and blood refusals in Bernard v. Minnesota, 14-1470, and Birchfield v. North Dakota, 14-1468.  Minnesota and North Dakota are among the thirteen states criminalizing refusal of a test for alcohol content when probable cause for DUI exists.  The challenge in these cases attempts to extend the reasoning in the Minnesota v. McNeely decision from April 2013.  In the McNeely decision,  the court erased decades of case law by concluding the normal dissipation of alcohol is, alone, not an exigent circumstance justifying the warrantless seizure of blood evidence.   Because McNeely did not consider either the implied consent laws or breath testing--many state laws remain largely unchanged.     

The petitioner Bernard was arrested on suspicion of drunk driving and later charged with first-degree test refusal.  That crime carries a mandatory minimum three year jail term. Bernard argues imposing criminal penalties for refusing to submit to a warrantless breath test violates the Fourth Amendment. The Minnesota Supreme Court disagreed, reasoning that a warrantless breath test is reasonable as a search incident to arrest.

The petitioner in Birchfield failed a field sobriety test administered after he drove his car off the road, and later refused to submit to a blood-alcohol test. The North Dakota Supreme Court affirmed Birchfield’s conviction on two grounds. First, that attaching criminal penalties to a test refusal in this context is reasonable; and second, that the privilege to drive may be conditioned on the driver’s consent to the test under implied consent.

A Minnesota article discussing the appeal is here: Minnesota Lawyer Dec 17 2015.pdf