Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?

In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771. So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?   First, a clarification. Schmerber was not an “implied consent” case. In other words, Mr. Schmerber’s blood was not withdrawn pursuant to a statutory scheme that required the State to first warn him of the consequences of his refusal to consent and then to request that he submit to testing. Instead, Mr. Schmerber’s blood was withdrawn by an officer who had probable cause to believe Schmerber had been driving while impaired and who had reason to believe that the delay associated with obtaining a warrant would cause him to lose evidence of that impairment. Schmerber held that the withdrawal of the defendant’s blood in [...]