Re-examining Implied Consent After McNeely, Part I

The United States Supreme Court held last term in Missouri v. McNeeIy, 133 S. Ct. 1552 (2013), that the natural dissipation of alcohol in a person’s bloodstream does not constitute an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. McNeely’s holding comported with the analysis that the North Carolina Court of Appeals previously had applied to determine whether such a blood draw was constitutional, requiring consideration of the totality of the circumstances in a given case to determine whether the nonconsensual warrantless blood test of a drunk-driving suspect was reasonable. If one assumed that law enforcement officers were sufficiently versed in the law not to rely on dissipation alone, but to require additional facts before withdrawing blood over a suspect’s objection without a warrant, McNeely seemed unlikely to generate many additional motions to suppress blood test results in DWI trials in North Carolina.

On the other hand, even though the plurality in McNeely appeared to equate implied consent with actual consent (see 133 S.Ct. at 1556, referring to consequences when a motorist “withdraws consent”), McNeely’s holding that there was no per se exigency in every impaired driving case authorizing the warrantless withdrawal of blood challenged one of the rationales relied upon as rendering lawful warrantless implied consent searches. Some courts had reasoned that searches carried out pursuant to implied consent statutes were lawful because they were searches that law enforcement officers could have compelled in any event without the need for consent or a warrant. Once McNeely clarified that law enforcement officers couldn’t compel such searches in every implied consent case, that particular rationale for implied consent laws rested on shaky ground.

Recent litigation from other states indicates that this post-McNeely concern about the analytical framework for implied consent statutes is not just academic. Defendants have argued that McNeely requires more than a totality of the circumstances review of non-consensual warrantless blood draws. They contend that it also requires a court to consider whether so-called “consensual” blood draws, carried out without a warrant pursuant to a state’s implied consent laws, are constitutional. In other words, McNeely requires reconsideration of the long-accepted theory of implied consent. Two state supreme courts have undertaken that analysis.

I’ll discuss the first opinion in today’s post and the second tomorrow. In a third post, I’ll discuss another potential framework for analyzing the constitutionality of implied consent.

State v. Butler, 302 P.3d 609 (Ariz. 2013) (en banc). A sixteen-year-old high school student, Tyler, prosecuted in juvenile court in Arizona for impaired driving, moved to suppress evidence of the State’s withdrawal of his blood.

Facts. Tyler had arrived late to school smelling of marijuana and was interrogated by a deputy sheriff in the presence of school officials. Tyler, who was shaking and visibly nervous during questioning, admitted that he drove to school after smoking marijuana. He became loud and upset when the deputy told him he was being arrested and was placed in handcuffs until he calmed down. After the handcuffs were removed, Tyler was advised of his implied consent rights and was informed that he was “required to submit to the specified tests.” Tyler assented to the withdrawal of his blood. The juvenile court determined Tyler’s purported consent was involuntary and granted his motion to suppress.

Holding. The state supreme court held that, independent of the state’s implied consent law, the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth’s age and a parent’s presence are relevant factors in assessing whether consent was voluntary. The court found sufficient evidence to support the juvenile court’s finding that Tyler’s consent was not voluntary, noting, among other facts, his age, the fact that no parent was present, that he was detained for about two hours, and that he was informed that he was required to submit to the test.

Concurrence. Justice Pelander wrote a concurring opinion noting, perhaps presciently:  “[O]ur opinion today might well engender dubious involuntariness claims and related suppression hearings aimed at excluding evidence derived from chemical testing of impaired drivers whose express consent was ostensibly voluntary and valid under Arizona’s implied consent law.” She noted that the “safest course of action for law enforcement might simply be to obtain search warrants . . . for obtaining blood samples in DUI investigation . . . . [as] that default approach, although arguably diluting the effectiveness of the implied consent law, and not constitutionally required under McNeely (which neither involved nor discounted consent as a valid exception to the Fourth Amendment’s warrant requirement), would certainly comport with the Fourth Amendment and alleviate many potential, foreseeable problems in this area.”

Check in tomorrow for discussion of another state supreme court’s determination that consent following an implied consent advisory was freely and voluntarily given.