Noah Feldman, Columnist

Even Drunken Drivers Have Rights

Supreme Court weighs whether a Breathalyzer is an illegal search.

April 20, 2016 at 4:10 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Drunk driving arrest.
Photographer: Carl D. Walsh/Portland Press Herald via Getty Images

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Can you be charged with a crime for refusing to take a Breathalyzer test when stopped on suspicion of drunken driving? It’s hard to think of a constitutional rights question that affects more people. On Wednesday, the Supreme Court will take it up, considering whether the Fourth Amendment right against unreasonable search and seizure1461166225908 protects your breath and your blood from a warrantless search.

Two different states involved in the case offer different constitutional reasons for their practices -- a sure sign that something is fishy here. The bottom line is that mandating a search without a warrant violates the Constitution, and the court should say so, regardless of the legitimate importance of combating drunken driving.