[inaudible conversation] [inaudible conversation] [inaudible conversation]

our campaign 2016 bus bus continues to travel across the country to honor student cam winners. we recently traveled to wyoming. sam smith was recognized by classmates and local community for their winning video. then our bus travel to south dakota. the final stop included a visit to minnesota where third prize winners were honored for their

video on water pollution. a special thanks to our cable partner, comcast charter to help coordinate these visits. every weekday, be sure to watch one of the top 21 winning entries at 6:50 a.m. eastern before "washington journal". >> on capitol hill tomorrow, they testify on the f35 joints fighter program. it's live at 10:00 a.m. eastern on c-span three. >> they hurt us --dash in north dakota and 11 other state, the driver can be charged with a crime if they receive consent to a test. this is about one hour ten

minutes. >> case 141468 and the related cases. >> thank you mr. chief justice. the fundamental problem, under laws of north cave in minnesota, persons who are stopped on suspicion of impaired driving are obligated to take a test to determine the alcohol content of their blood. the states concede these tests. no exception, never the less. [inaudible] it's a criminal offense of he or she does not do so. >> is it correct to say you can see the state could revoke the drivers license to refusing to take the test if the blood

alcohol or breathalyzer? >> that is not an issue in this case. we haven't taken a position on that but we don't dispute, for the process purpose of this case. >> let's assume that is a concession or we hold that or that is a parameter. if the state can impose a civil administrative sanction, why can't they impose a criminal section and we can have hypotheticals and it would just be more than three days in jail criminal sanction or three-year suspension which is obviously greater. why should there be a difference? >> i think the fundamental thing at the outcome of this case is that between the state taking away a benefit that it didn't have the right to do in the first place.

i think the conditions are just different i don't think analytically if the different propositions. i have to disagree with it. they took away benefit they did not have the right to do in the first place. all they are doing is saying you're back in the position you are to begin with. the court in those cases said, the practical effect of the benefit and the condition to see whether or not the state reality is trying to do indirectly what it could not do directly. that is the suppression of the constitutional rights. is there a connection between the benefit and the condition.

what they're trying to do is figure out if the state is trying to do indirectly something they could do directly which is to take away constitutional rights. >> they don't want to criminalize the constitutional right but reneging on a bargain. the bargain was we give you a license to drive and a man exchange for that you consent to a blood alcohol test under certain circumstances. if you renege on that part then that's what's criminalize. why isn't that a better way of looking up this? >> to look at it that way, i think you're in a world of consent. in this case, at at least, there is no suggestion that consent of that sort was present. there is no reason believe that the defendants had any reason to believe they were agreeing to

the bargain you described. >> per every drivers license you had to sign a consent form, i consent to take a breathalyzer test in the event of an officer has reason to require it. suppose there is real consent. >> then the analysis would be, not the analysis in this case. >> it's real,. >> i assume they're going to stop everybody, so somebody who isn't from that particular state who hasn't signed anything is still subject to the criminal. >> that's my next question. let's talk about the state. >> that impact is the reality.

>> i know. >> i think, as i say, the analysis would be a consent analysis and i think it would be the states obligation it's truly voluntary and it's the defendant's choice that it was not. >> especially in north dakota, you have to drive in order, consent is fictional in that sense. suppose it was voluntary and then it was explained and so forth. >> it still seems to me you have an argument that it is coerced. >> i think that's right. the analysis would be a consent analysis and one of key points of that is coercion. i think of someone's told you cannot drive, take north dakota

for example, something that is absolutely essential for daily life to going to their job. >> what provision of the constitution? >> in the fourth amendment because. >> the right people have to drive, i thought you were just postulating something saying, but you're saying the states could not take away that right. >> i apologize, that's not what i meant to say. >> what i meant to say is that people are told, and actually aware that they're being told, that to drive they are consenting to be searched and there consenting to be subject to a chemical test whether the states can execute on that depends on whether or not there is consent. >> i thought you said there's coercion because you can't survive in north dakota without a car, but what is the basis for that right? >> i think that's not a right in

the constitution the relevance is there would be coercion. >> so for purposes of analyzing this case, we have to assume that states will prohibit people from driving. >> i think that's right. >> as far as the border goes, stopping people at the border, what if there's a sign at the border that says the only one who uses the state roads consents to blood alcohol testing if there pulled over. >> again, that would not be this case because in this case these defendants had no idea that these were voluntary surrendering their rights. i think it would be a difficult case statement to make. they have to carry the burden of showing that the defendant actually voluntarily surrendered

the right. [inaudible] the issue were talking about, obviously it's not a realistic contention, but a lot of hypotheticals aren't. i'm trying to get the basis of the flexibility that the state has in the situation which is dependent upon the rights the moderates have. i understand the argument but it does seem to me you're making unconstitutional conditions to determine what authority the state has. >> that's right. let me be very clear.

i think there are two points that are crucial. one is that were not making unconstitutional conditions. what they are doing is a direct association of criminal penalties on people who are serve their first fourth amendment rights. >> we are interested in other possibilities. if you at the state can condition the ability to drive on the states road, and let's assume it's not someone who's crossing the border. they have the ability to dry drive on the states road on consenting to blood alcohol tests under certain circumstances. let's say this is done in writing when a person applies for the license. it's not just implied. why does that or what is different about that situation from a number of other

situations that i can think of. for example a lice a right to operate. in the event of reasonable suspicion, the person who is operating the train under the influence of alcohol or someone who is operating aircraft, suppose there were a lot to enter certain government buildings, such as builder and the condition of entering is consenting to a search and you have to sign something and go through a test and if a person got through that and there was reasonable suspicion that a person had smuggled in some kind of a weapon the 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, at least some of the hypotheticals that you offer , there's the special need exception to the warrant requirement that applies. there's no requirement for a warrant in the first place. i think entering a government building. >> but in most cases, don't you just lose the benefit. you don't come into the building. >> that's correct. >> you lose your job. >> let's be clear on what the doctrine is. there simply is no fourth amendment right so were not going to benefit the conditions. were simply saying you have no road to resist the search. >> but if you say that and i recognize, if you say there was

no constitutional right because we could take the constitutional right away, that's exactly what the government is going to argue. it doesn't seem to help us. >> again, i think i would look at it differently. i think what's happening is that in the circumstances of the search, is there a requirement for a warrant. >> i would say suppose this is like a compelling showing was measurable increase in traffic fatalities and therefore you must consent and that means there's no constitutional right because we just said there's no constitutional right. that would be creating new exceptions to the fourth amendment. and it's not subject to analysis >> i think what was happening in skynyrd, is the court is saying

were looking at their circumstances that the individual's right to privacy, whether or not there is discretion on the law-enforcement officer to decide whether to execute the search. all those things going to special need. the court said in special needs situation there is no fourth amendment right. >> maybe i misunderstood that. i thought that was the whole point of the question. why can we say this a special needs. >> the statistics are compelling when we talk about innocent lives, just just as we were in skynyrd,. >> i think that the analysis there is, do we look at the basic fourth amendment characteristics that go into whether or not a search took part. the court essentially address that very question, they address the argument that the driving

problem is so severe and compelling that we can disregard the warrant requirement and the court rejected that. >> i'm not sure that's different in this case. in the railroad case what we are saying is the need for safe transportation on the train to protect the innocent people there is howling enough that it falls within this special needs exception. i'm not sure why that analysis would apply here. i don't know. i six up suspect more people die from drunk driving accidents than they die from train accidents. the special needs would be just as compelling. >> i don't think that was the rationale in skynyrd. , at least not the entire rationale. i think it's a principal reason for saying there was no warrant requirement and there was no probable cause. they can be search for any suspicion at all. i think the point is the whole

combination of characteristics that there is no discretion on part of the law enforcement officer who did the search that there was a variety of things, these were not criminal investigations at all. the court has said time and again that in ordinary law-enforcement circumstance, a warrant is required. that is the presumption. >> it's a presumption, but in, there are many ways of analyzing this case. 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've been discussing. one way to analyze it is you just ask, is this an exception to the fourth amendment. the question, the fourth amendment requires a warrant in

these circumstances. and, it seems to me if it does then you do and if it doesn't the state might be able to do this. that's what i'm thinking. the question is, and i don't find this very much and it surprises me. that's what i want you to address. why is there a big difference between a blood test and it russell iser. i look at a breathalyzer and it's a little box the size of a cell phone. it has a little straw on the end and you breathe into it. it must what you breathe into it is carbon dioxide which will be going through the environment anyway. you're not going to keep it. a blood test coming up go somewhere else. there is risk involved, time lapses can affect the evidence,

and it's painful in some instances. so i immediately think, isn't there a difference? in a to in what i'm saying is, what is wrong with a breathalyzer test when it can save lots of lives and is given to those people where there is probable cause, i take it, or at least reasonable position to think they are drunk. if there innocent fine, if they're guilty, it's very little interference. a blood interference. a blood test, that might be a different thing. okay, i appreciate what your response is to that line of thought. >> i think your statement is quite correct. on the breath test, the breath test is a significant intrusion on personal integrity as the

court said in skynyrd. first of all, there is no question that the breath test is a search and that's conceded by my friends on the other side. the court's presumption has been that when there is a search, a warrant will be required in less irregular exception applies. in north dakota there is no such exception. >> why can we say with respect to the breath test it is a search incident to arrest. >> the court has been very clear consistently that those terms exist with one or two considerations. either the search is necessary to preserve officer safety. >> i think this would be based

on the notion that it's necessary to preserve evidence and this is about as un-invasive as a search can possibly be. given those two things together, it is useful to preserve evidence and it is extremely un- invasive, then we can assimilate it into the doctrine. >> the evidence as being tested as the blood alcohol level. so. >> yes but there's something very different in a level of invasion. certainly it's appropriate to look at the invasion of the test. if that weren't true we wouldn't talk about how much you could

get off the cell phone. if that were true we would allow people to do body searches when they search to arrest. it seems to me the court can look at the level of invasion when a search comes within the doctrine. that might be a way to separate this category of cases from the ones we were talking about with mcneely. >> first, a breath test is a significant intrusion. when one takes a breathalyzer test, it's not just that you're exhaling in the ordinary way and your carbon dioxide is dissipated. >> i didn't say ordinary way. i said you blowhard into a tube thing that's connected to a cell phone. whether it's significant or not

doesn't impact me. either it is ready is. why is it so intrusive? the constitution insists on a warrant. that could undermine, in many cases, the evidence you are looking for. that's a question of several factors. it doesn't help me to say significant or not significant. that's the question, not the answer. >> why do we think it's significant? when tubes are inserted into a person's mouth and you have to exhale continuously for as many as 20 or 25 seconds. the. the point of it is to expel. >> after all, if the person's eyes turned bloodshot every time

he drank four bottles of whiskey, you could look and his his eyes and that wouldn't be intrusive at all. once you looking for, doesn't have much to do with the intrusion. it's the way you're looking for it that's the problem. that's the problem. not that you want to know a particular reason. >> you want them to submit something from deep inside their body for government testing. >> excuse me, but from my experience when police do the road test, they do it because they want to confirm that you are drunk. before they take you in and take you off the road, they are doing this test as part of the evaluation. is there enough probable cause to bring you in.

there may be, independent of it, but sometimes the breath test exonerates people. i do think the blood test is, by the way, you've arrested them and decided to take them off the road and the road is now safe from that person. >> and that's true of a breathalyzer too. were talking about persons who have been arrested or had probable cause to believe. >> as i said there's probable cause image probable cause. >> meaning why can't we view this as part of the necessity of the stop and suspicion of the stop? >> because again the test were talking about here, in the laws

of north dakota and minnesota, the officer has the right. >> what is the procedure of breathalyzers that's given and what receipt is given after the person has been arrested and goes to jail or the equivalent? >> there's a field sobriety test that's given in almost every initial screening. >> i'm asking which percent is which and i think that might be relevant. you may not know. if you don't know so you don't know. >> i don't know your honor. i think the question is how many people who are stopped in a preliminary way are arrested for suspicion of driving while impaired. >> i'm not sure those are statistics anybody has. >> there's better technology than the breathalyzer test. let's say ours required to put the breathalyzers and inch from

the person's mouth and wait for the person to breathe and that would be sufficient measure of blood alcohol. would you say that the search? >> i think i would be very different situation. >> so if you compared that with what they've done here, what is the big significant, what is the big difference between those that you have to put a stronger mouth? >> i would think that most people, maybe this is just me, but my suspicion would be that of most people are presented with the possibility of putting something in your mouth and expelling something from deep inside your body, people find that intrusive. >> that doesn't seem realistic. the reason why people don't want to submit to a blood alcohol test is that they don't want it measured. it's not that they object to falling into. >> do you disagree with that? >> i think maybe i do your honor. obviously people who are stopped on the road don't want to be tested.

>> that's not true. some people are happy to be tested. >> i think that's an intrusion two. >> it's an intrusion when you pat down someone having probable cause to believe they're committing the crime. you're patting him down which is the worst intrusion. i would guess patdown is oh worst intrusion form of search then blowing into a straw, and we allow it. >> let me offer two points. one is, the states almost uniformly treat breath test and blood tests identically. >> that's a good question. why. that's why started with that because i don't know the answer. >> if you the answer is that people understand the breath test to be, it's the the design

to obtain the same evidence. >> please, go ahead. >> i think you're concerned about the evidence. as for the blood in the breath test, it's exactly the same. >> we write that the dissipation of the evidence works the same way, but you suggest we should close our eyes to the fact that there's a very significant difference in the degree of invasiveness. both of these are searches. there are searches and then there are searches. there are more invasive servers searches at less invasive searches. that's an important difference we think about these types of questions. >> as to the nature of the breath test, i've been addressing this and i'm not sure how much more can say.

the reality is when they are asked to expel something from deep within the body to be tested by the government, that is an intrusive proposition and most people regard it in invasion of their personal integrity. >> what about the standard sobriety test?