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?

>> >> in addition to the particular characteristics and i dated is the fact that the court has always there is no question. the court has said we're the most recognized exceptions. >> but the question that i

ask maiduguri clear is the exception but the question is is this incident to a restive with the various aspects then getting a warrant might interfere with that on a relative if nonabrasive but for dissipation my understanding of that doctrine is the concern to be suspect to get rid of the evidence that the court made it clear that it doesn't have to dissipate and will be tested later on.

so that is an entirely different category of such evidence as i understand it. >> with that affirmative effort to get rid of the evidence of the standards. >> but the evidence has suggested there is nothing that you can do to take the evidence and hide it. added a predictable way. of that can be heard if the state gets a war than they can do that.

>> mr. chief justice if it pleases the court the statute strikes of of bargain with individuals conditioning their use of the blood alcohol test of arrested for drunk driving. and the use of the test refusal what about texting while driving is an increasing problem? the you give implied consent for the officer to look at the text or whenever they can get to make sure that one minute ago you were texting somebody while driving. is that under your rationale? it is highly doubtful your honor. >> this is a uniquely

compelling interest if there are is at least as many accidents as people creaking while driving or texting while driving. >> even so that is uniquely compelling interest and the state's battle for truck driving. >> there is a that much testing with the iphones. >> certainly your honor. the search always comes up with the driver has been arrested. to see if this person was driving drunk. right there on the people that are causing the problem >> in respect to my hypothetical is there a

texting just like when they are intoxicated. the officer says let me see your phone. lusby test your breath or check the phone. >> it is different because there is probable cause and it comes from the field sobriety test. >> you do that before the breathalyzer? >> not necessarily with an officer could do the on-site screening test that that was probable cause. >> to the alcohol you can small smell it the eyes are red and this speech is slurred. >> this is standard stuff

like the chief justice hypothetical baby down the road if you are texting. >> aside from that, there is a whole separate betting it is much different as recorded must -- most differently separating one level over that is more intrusive with the dissipation of evidence from drunk driving. not only that is the stakes are in a terrible blind. the situation they are left only with administrative penalties. it creates a loophole in the system that makes it difficult. >> you are not left with that. and to set up a system to

get a warrant but it is a very powerful large collaborative. -- alternative proposal would is a that you don't have an out the issue for us is to be dispensed with an important requirement and before you search the inside of a person with than needle or the interest of i don't know why you think you're left with nothing. >> we think it is helpful for us because what the court was concerned about was with mcneely was a forced blood drop but also mcneely said these are the alternatives and don't

require of blood drawn. to suspend a the license license, sanctions are very different thing in a scope. you are putting someone in jail not just taking their licence away. >> we don't dispute that and that is the essence. given that the court has already endorsed these types of conditions. and a significant consequences. >> where the practical consequences to require a warrant for every breathalyzer in a state like north dakota? not like night court going on at the time.

and how many magistrates what do you have on duty? >> the first part if a warrant was required in every case so in north dakota and in to know what is on call it takes a while liberal jurisdictions. it in the larger jurisdictions that process

then that goes to a magistrate to ask from half an hour to an hour and then with the prosecuting attorney first. end and there are people waiting. [laughter] your honor in large part the lack of resources and manpower not as many people. >> so that excuse is you from a constitutional requirement to start on the perception but since many

jurisdictions manage that to north dakota. >> is a bad hair asking for pasture but borage is not required in every case. >> what they're asking you is to get as cents and asking you to assume something if you could put into practice in ted or 15 minutes. so what is your interest that you are asking us. >> the purpose of the warrant is to give a search over their objections but that is not happening the

state does not want to undertake the research because of the public safety risk. >> i'm sorry if you obstruct justice or refuse to comply you can punish them for obstructing justice. and from putting them in jail as being drunken-driving. so what is it that justifies doing away with something as important of this requirement? >> it is a that the state is trying to. >> is trying to get evidence a pure law enforcement need nothing to do with the safety of the community because that person is taken off the road.

we presume you can suspend their license. >> your honor it is something different. i respectfully disagree ended to take them off the road. it is still very much a public safety. in the stakes without a penalty for refusal and in every case struggling to figure out what is your interest. so it is a question so suppose you set up the system were so they could be reached a tentative 50 minutes and to save to

satisfy the requirements. what is the problem to rely on a system like that? so this goes beyond the fourth amendment. >> i am asking about your practical leads. for what is or what isn't? your practical means? >> the point of the war dues to authorize the search over the objection. i do not understand that answer. in the wake of the recent cases very talk about warrants of modern technology to know how heavily populated in 50 minutes.

that a warrant is not necessary. every year asking to make it a crime to exercise of constitutional right to. in no case that allows that if you're just not answering the question in the wake of our recent decisions warrants have been expedited bidding cases and if they have been wide it is a dancer. >> there is a couple of reasons to require in this situation it will lead

invalidate. >> we don't want this the practical fact is it possible you could get a warranted 30 seconds for the cell phone with the big w then a voice, and says what is the problem you explain in 15 seconds they say you have your warrantor something now if that were in front of us would it take me too long to decide the case. you might answer that is ridiculous it can be it is an even 15 minutes or you could say it doesn't make any difference but i want to know what your answer is on the fax.

>> there is some delay so why does it make enough of a difference? there is the couple of reasons the implication of the fourth amendment right because the unconstitutional conditions they always allows states to impose bargains in this manner from 100 years to allow this so it is really just the criminal element. >> your answering the question. >> do you know, how many breathalyzer test for breast is administered in north dakota? >> 6,000 of the two it is roughly 50/50 over the course of the year. >> a different type of factual question.

how many are done roadside were taken to a police station when a they taken to a police station what is the practice? >> please answer. >> the only test that is done on site is a pulmonary which is not admissible the blood test is done at a medical facility by a doctor or a nurse their breath is done at a police station or jail with at chemical breathalyzer. >>. >> i would like to follow-up on the questions of the practicality having grown up from the north dakota border

and of those in the rule area inveigled possible to get a search warrant in every case we would do award in the blood drawn in every case. that is not what this court once. it to cause any more delay. and why would i delay after the police department? that is not done on this side of the road. so if you take it to the

police station in any way. it just requires a phone call to get the warrant then what is the problem? >> why bother? because now we're transported this person to the police station then i have to get a warrant. >> no, no, no. >> let's talk about that aspect that is role of north dakota and minnesota in a law of these jurisdictions there is only one officer on duty. aicher from the border there is only one officer on duty that has not changed. the other problem is there is not a hospital located in every jurisdiction and every area of north dakota or minnesota the town that i grew up in the end nearest hospital was fargo north dakota. >> you don't take them to that it is a practical

alternative if they choose to take the breath test. i will not get a warrant. >> why? >> i cannot for somebody to blow into the straw. >> if it is a crime not to that will force them. so now what we're missing in this argument but people are trying to figure out is if for get the blood tests that is a separate matter i am talking solely about the brusque. does the constitution require you to get a warrant all things being equal? if it leads bin that direction? why not.

that you say all the things that has cut against zero then nazis to take 15 minutes than why can't you call the magistrate? then that is where you are. why is that bad? >> we have to look at the complied consent so currently it says was the offer a task we are done. >> i know how to explain it more clearly. i am talking practical fax if you are prepared to come back to say if we have to get a warrant 50 percent of truckdrivers will never be caught.

if you come back to say if you say the war it is required, it will be 400 policemen have to spend 10 seconds more than they otherwise spend i say that is a point but not much. >> i will have those type of statistics to answer that question. >> maybe a different way to ask when we decided mcneely there were two opinions one was the that was a conference or dissent the chief justice opinion even with respect to a blood test. there was 20 minutes between the time you were stuck to get the blood drawn to get a

war to those 20 minutes in to get a warrant at the very least why is it that the case? and in my mind it all these cases you're driving these people to the station house at least with the chief justice said with mcneely you can get a warrant within that time you have to get a warrant within that time. >> speaking on behalf of minnesota it is clear minnesota treats, i don't necessarily disagree that that is the alternative argument. minnesota specifically treats blood test differently than a breath test. specifically and the court has recognized that. for example, under the

complied consent in order to get a bloody urine test it is interoperable. but we do treated differently. minnesota treat it differently in the bernard case that is clear very clearly stated to address blood or urine and they will surely because there are two cases before them. >> let's talk about the breath test. i am not sure where they are not roadside but if you take them to the police station they do have a question about the war in. to adopt those petitioners position.

and as soon as justice taken did to put in place for a warrant you can do it as you go there. but right now we have dozens of cases where the police tell the homeowner to apply for a warrant so the number of warrants are much less the cause of that so few campus system in place and you tell the person if you don't do the protest you'll be charged with obstruction what are you losing out to? >> the enhanced ability. that is the difference for

the dw y. there is an enhanced ability with tw live. in minnesota for example, if i can not charge their refusal left with the obstruction i can no longer use that to enhance in the future the wi of the same person. >> to create an exception to the fourth amendment drastically. into a somewhat to say yes or no without a warrant. if they don't comply that charge of construction. >> but not the same consequences that was the

d.a. did you why. >> but that is not to penalize instruction at a higher level. that is your choice. >> added is minnesota's position a warrant is not necessary. . . is the court this afternoon and address the consequences.

the u.s. code and explain why it would be a mistake. >> and real i think it's important to not assume that warrants are available 247. that is not the case in the real world. the case knows that. the north carolina example is one that was the study did there is a peer three jurisdictions that were able to put in a lot of requirement that for the nine jurisdictions due to resource reasons were unable to do it. i can tell you in the wake of mcneely that way they can get the warrants 247 in maryland they have stopped doing blood draws in virginia and d.c. because the magistrates are not available 247. even in mcneely itself for the court listed in a long footnote.

>> why a maryland have been been able to and not in virginia. >> for the federal system it's not a resource constraint. the court recognized it's a willingness to of the judges to be available 247 and a matter of priorities. you may not get that in the southern district of new york. you might have that for terrorist attacks but not for drunk driving. it's not available 247. >> how long does it take? >> persons cronk and 10% above the the legal limit how long does that take to dissipate? >> how long before that would register 10% above is now equal to or less than? >> i don't have one of the exact statistics. what the court has found is that you can back calculate.

there is a delay. in the maryland case you can get it as soon as 15 minutes but a warrant can take as long as a half hour or 90 minutes or two hours. i think it would be a big mistake. they listed 33 states but that leaves 17 states that don't have it. >> there are more and more every year aren't there. >> there definitely are more and more and they are based on these warrants always being available. there is a serious risk that once you require that the evidence is lost, particularly where you can't get a warrant. if i could turn to the criminal rule that i understand to be the

court petitioner's case. the court set a state may condition driving on public roads and the require that their arrested or detained and agree that the state may impose consequences on the refusal. does the constitution impose this against it even though they are insufficient to overcome the natural intent that they will have not to abide by that condition. as a matter of common sense i don't think that makes sense. the idea you can only withdraw a government benefit has major problems. for example, if the condition would extend beyond the term of the benefit that the benefit does nothing. the u.s. code reflects that .-period-paragraph i am subject to a one-year ban when i leave the office for contacting or communicating with the office on

an official matter. that is punishable under the code by up to a year. that is not the only situation. it criminalizes contributions by government employees. forty-two, 14135 criminalizes a refusal to refusal to give dna. the idea that there is a bright line between administrative sanctions and criminal sanctions that forces the government to rely only on the government benefit is just not the case. that's reflective in this case law. back in 1927, in the case that was discussed in the brief, that that was a situation in which texas had a condition driving on the texas roads and restricted that by imposing. those were viewed as unconstitutional of private contact. although they identify it as a

case that's not have criminal penalties and was after all the benefits, i think if the court looks at it differently you will see they impose criminal penalties. again the idea that the only thing the government can do is withdraw a benefit in the context of an unconstitutional condition and can't go to the court and enforce it really. >> i think one of our concerns is that driving is so essential for so many people that's really different than opting to work for the solicitor. >> i think this is critical. what the court said, the court what the court has said is for 60 years, yes, yes, of course it's different than working but

it's a dangerous activity when you're driving to tons of steel down the road and the court said, you can condition driving. that is a a reasonable condition that the state can impose. >> your time is about up but i will stop you. there's another question. is it permissible, based on the pleading and the brief that has been filed for us for the court to make a distinction between a breath test and refusing to take a blood test? >> certainly it is. i do think what this said is that a breath test, the court has never believe that a warrant is required. they said there are no significant privacy interests and we cannot conclude a breath test. >> the intrusion is smaller and the amount of information is just the alcohol and it can be

done as part of the regular booking process. on that side of the scale, the privacy interests are significantly smaller. are those tests often administered roadside? >> as a general matter there actually done at the station. there's a test that can be done at the side of the road that is often not admissible. many jurisdictions are not using those. they're actually done at the station. i also would like to say, that the warrant is kind of an odd pit because even with a warrant, generally the warrant provides a function of having a mutual mutual magistrate look at the evidence, but generally they can force compliance. that's not possible in the press contacts. a warrant for a breath analysis

can't be accomplished without the consent of the breather. you can't force someone to breathe steadily enough, it's like an extended birthday cake blowout, you can't force someone to do that. a. a warrant is kind of an odd thing. >> presumably there are sanctions for failing to comply with the valid warrant. if they have a warrant to search or house and they say i don't care, i'm not going to let you in, then it's criminal sanctions as well. >> and might well be, but i think it shows a little bit why the use of the warrant doesn't quite map on the way i think the usual search contacts. the other problem you have is that you can't force compliance you might have another statute later to do it. because the consequences are not as clear, what it will do is drive the state to the blood

testing which one can force. that's the very situation that this court recognized in the states have told you, it's inconsistent with neville and it's a situation that they don't want to be driven to a forced blood draw on a nonconsenting person. >> assuming for arguments sake that you can take a breathalyzer without a warrant what need is there for a blood test without a warrant? why isn't it at a minimum that you can have a blood test you need a warrant. one difference is that if an officer has a suspicion that there's something other than alcohol. >> it's important but it's going to take time, you have to get to the hospital, there's a risk involved involved in as a more serious intrusion. so it could be pretty minimal. you get into the hospital and go get a warrant. nobody's making you do it. the question is whether they

have to have a magistrate's approval. that's what my question was. >> why would you win on the blood test question. >> we went on the blood test because there is no bright line on criminal sanctions and because it's important outside the blood context where you need the drug prevalent question. >> thank you. three minutes. >> thank you mr. chief justice. all make three points. to legal and one practical. first, i think given the discussion we should not lose sight of what is the fundamental legal proposition. people who drive on the road will lose their right. there's no consent here or knowledge. so what's being offered by the government is that states can simply attach to any benefit