Supreme Court Has The Opportunity To Declare That Driving A Right Not Merely A Privilege

June 21, 2024


One of our Law Clerks, Brandon Hellwig, from our Syracuse office, looks into a some current Fourth Amendment cases heading up in the Supreme Court.

This article is a follow up to the analysis of the current Fourth Amendment cases: Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi, which are currently pending before the United States Supreme Court. The immediate issue presented in these cases involves the constitutionality of laws that make it a crime to refuse a warrantless test of one’s breath or blood aimed at determining blood alcohol content. However these cases present another issue, one lurking in the shadows of the jurisprudence contained in both sides’ arguments. That issue is whether or not driving is a fundamental right.

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution, or have been found under Due Process. Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional. Strict scrutiny means that the law infringing on a fundamental right is “necessary to achieve a compelling governmental interest”. Examples of fundamental rights not specifically listed in the Constitution include the right to marry, the right to privacy, and most importantly for this discussion, the right to interstate travel.[1]

Although the Supreme Court has found that the right to interstate travel is a fundamental right, it has not gone so far as to say that driving it’s self is a fundamental right. This has meant that States have been largely unfettered in their ability to enact legislation that restricts, regulates, and revokes citizens’ ability to drive. This could soon change.

The Opportunity

The drivers in the cases Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi are arguing that states cannot charge an individual with a crime for refusing a blood or breath test that was conducted without a warrant. They essentially state that this action constitutes an unreasonable search, because it is severely intrusive, does not fall within any of the exceptions to the Fourth Amendment warrant requirement, and cannot be justified as reasonable given the fact that there is nothing stopping the government from simply obtaining warrants for these tests.

The States, specifically North Dakota and Minnesota have offered multiple rationales justifying their laws. The States argue: a blood or breath test for the presence of alcohol falls within the warrant exception of “search incident to arrest”; or in the alternative that the breath and blood tests are not actually searches; and lastly, that these blood and breath tests, if indeed are searches, are not unreasonable, and thus not covered by the Fourth Amendment. All of these rationales are premised on the fact that the ability to drive a vehicle is not a right, but a privilege, and is therefore not subject to the full protections of the Constitution.

Therefore, the Court has two options in approaching these cases. It can rule on each argument individually resulting in piece-meal precedent, which would ultimately lead to further challenges, or it can once and for all declare that in today’s society driving is a fundamental right. It seems logical to classify the right to drive as a fundamental right for a number of reasons. In many rural states such as Minnesota and North Dakota being able to drive is essential in order to get to work, school, the grocery store, and medical appointments because of the lack of public transportation. Our society is fast moving due in large part to the innovation of the automobile, it follows then that every person has an inherent right to be able to drive an automobile, free from arbitrary interference on the part of the government.

If the court declares that driving is a fundamental right, then all the States’ arguments essentially fail. This is because of the fact that a fundamental right is afforded more protection than a privilege, what driving is currently classified as. Thus, the government would need to show that it has a compelling interest in conducting breath and blood tests on drivers, in doing so without a warrant, and in charging those who refuse with a crime. Public safety on the roadways (the interest the governments of North Dakota and Minnesota are offering currently) will likely suffice as a compelling interest to be able to conduct the breath and blood tests, but will certainly not suffice as justification for doing the tests without a warrant, and will not suffice for charging those individuals who refuse with a crime. There is nothing stopping the government from getting warrants for these tests, furthermore, warrants serve as a safeguard because they are issued by a judge. The judge, when issuing a warrant ensures that probable cause exists and that the action sought by police is sufficiently tailored and not over-broad. This type of safeguard is essential when dealing with a fundamental right. Lastly, it is doubtful that the Supreme Court would uphold a law, which charges someone with a crime, for failing to give a breath or blood sample, when the purpose of that sample is to otherwise deprive them of the fundamental right to drive. Holding otherwise would be to punish citizens for not willingly helping the government deprive them of a fundamental right.

What Would Happen In New York If Driving Was A Fundamental Right

Unlike Minnesota and North Dakota, in New York, when a driver refuses a breath or blood test, they are not charged with a crime. But, upon refusal, a driver’s license is immediately suspended pending a hearing. If the arrest and stop of the vehicle were proper, then the hearing judge need only determine by a preponderance of the evidence that the driver actually refused. Preponderance of the evidence is the lowest standard of proof that exists in our judicial system. Furthermore, the normal rules of evidence do not apply at these refusal hearings, meaning the judge is free to admit or deny whatever evidence they choose. The low standards associated with these types of hearings make it extremely easy for judges to find a refusal. Once a valid refusal is found, a driver’s license is revoked for one year.

Should driving be found to be a fundamental right however, the nature of these hearings and the penalties associated with refusing a chemical test would change. It is certain that if driving were a fundamental right, any hearing held in regard to a test refusal would need to conform to the normal rules of evidence, and would be governed by a higher standard of proof such as clear and convincing evidence or beyond a reasonable doubt. Criminal trials, which can result in a deprivation of life, liberty, and freedom, are held to the standard of beyond a reasonable doubt.

It is also a possibility that if driving were classified as a fundamental right, that refusing a blood or breath test would result in no penalties at all, depending on how the Supreme Court chose to treat the right. The Court could conceivably hold that, refusing to give the government evidence against you, which will be used to infringe or take away a fundamental right, cannot be punished. Ultimately this would be the best result, and would best reflect the values set forth in the Constitution of New York and the United States.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.


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