In the Supreme Court’s June 2016, Birchfield decision, the 5-3 court majority confirmed that blood may only be drawn from a DWI/DUI suspect with the suspect’s consent, with a validly issued and followed search warrant, or for exigent circumstances (for instance where a judicial officer is not timely available to rule on a search warrant application). Birchfield v. N. Dakota, __ U.S. __ (June 30, 2016).

The key to Birchfield is that in DWI/DUI cases (1) breath tests can be obtained as searches incident to arrest, with no search warrant required and permitting criminal penalties for refusing a breath test, and (2) refusal to submit to a blood test cannot be criminalized, and “consent” to a blood test can be challenged if the police warned the arrestee that blood test refusal risks criminal penalty(ies).

In Virginia, Birchfield is particularly significant, because the standard implied consent advice form (at least the form in existence pre-Birchfield) commonly read by police to DWI/DUI arrestees mis-states that criminal penalties are available for blood test refusal by those previously convicted of DWI/DUI or civil/criminal refusal to submit to breath or blood testing in DWI or DUI cases.

Birchfield is a long opinion with two concurring-dissenting opinions on top of the majority opinion. The essence of the opinion as to blood testing is at pages 33-38 of the Birchfield slip opinion.