Drunken driving is a crime that requires strict enforcement, harsh penalties and all the attention the nation has given it in recent years. But enforcement efforts shouldn’t require tossing out the Constitution, as some states have done in their quest to get drunken drivers off the road.
On Thursday the Supreme Court chose a middle ground that only partially protects one of the nation’s most basic constitutional rights — the right to refuse a warrantless search.
The court ruled that police must obtain a warrant before requiring a suspect to submit to a blood test, but also held that breath tests — which they found less intrusive — do not require a warrant.
The ruling came in cases that originated in North Dakota and Minnesota. It will affect similar laws in about a dozen states and a federal law that covers national parks, where it will remain a separate crime for a suspected drunken driver to refuse a breath test.
Legally, the decision was a partial victory for the Fourth Amendment, from justices who were obviously divided during oral arguments and searching for a compromise. In practical terms, though, the decision was a bigger win for states that have sought to criminalize refusal of tests that follow drunken driving arrests. Buoyed by this victory, more states may seek to make it a crime to refuse a breath test.
Two justices are worried about that trend. Justices Sonia Sotomayor and Ruth Bader Ginsburg joined the decision requiring warrants for blood tests but wanted to go further, requiring a warrant for breath tests, too. As Sotomayor wrote in her dissent, she fears "that if the Court continues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion."
States certainly face a dilemma in battling the scourge of drunken driving, which despite enormous progress still kills about 10,000 people each year. All 50 states impose civil penalties for test refusal, typically license suspension. But if the penalties for refusing blood or breath tests are too light, states fear that more people will decline the tests, particularly repeat offenders and those who believe the tests will show very high levels of alcohol.
What some states ignore is that there are alternatives to deal with the problem, short of making it a crime to assert a constitutional right.
Warrants, which once involved the time-consuming process of appearing before a magistrate in person, are easier and quicker to get in the digital age by using cellphones, iPads and computers. Many cities and counties provide 24-hour call-in centers to approve warrants or have magistrates on call. Wyoming, a rural state where it would take time to get a warrant in person, has allowed cellphone warrants for drunken driving since 2012. Other states could easily follow.
Continued progress to curb drunken driving depends on doing what's most effective, not just what's easy. The most effective measures include sobriety checkpoints — authorized in 38 states as of last year, but not used frequently enough in most — and ignition interlocks, which allow vehicles to be started only by a sober driver. Interlocks are authorized in all states for at least some convicted drivers, but just half the states make them mandatory for all offenders.
Thursday's ruling makes it easier to coerce drivers into taking breath tests. But states might get more drunken drivers off the roads by employing measures that experts say do the most to prevent this deadly crime.
USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.
To read more editorials, go to the Opinion front page or sign up for the daily Opinion email newsletter.
