Implied Consent Laws Can’t Provide End-Run around McNeely

The United States Supreme Court held in Missouri v. McNeely, 133 S. Ct. 1552 (2013), that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every impaired driving case that justifies a warrantless, nonconsensual blood draw. In so holding, the court rejected the state’s call for a categorical rule—based solely on the evanescent nature of alcohol—that would authorize warrantless blood draws over a defendant’s objection whenever an officer has probable cause to believe the defendant has been driving while impaired. Some states have continued to argue, however, that nonconsensual warrantless blood draws in impaired driving cases are categorically permissible based on implied consent laws enacted by their state legislatures. Two state supreme courts recently rejected such arguments, holding that implied consent statutes in Nevada and Idaho that do not allow a driver to withdraw consent to testing are unconstitutional. That reasoning might be applied to invalidate the provision of North Carolina’s implied consent law that categorically allows the warrantless testing of unconscious drivers.

Byars v. State, 2014 WL 5305892, __ P.3d ___ (Nev. 2014). The defendant in Byars was stopped for speeding. The trooper who stopped Byars smelled marijuana, which Byars admitted to smoking five hours earlier. Byars was arrested for impaired driving. The officer read Byars his implied consent rights, told Byars that he would perform a blood test, and took him to the hospital for that purpose. Byars physically resisted the withdrawal of his blood, striking the trooper and an assisting sheriff’s deputy in the process, but his blood was nevertheless collected and analyzed. The results were positive for THC (tetrahydrocannabinol, the psychoactive component of marijuana). In addition to impaired driving, Byars subsequently was charged with felony firearms crimes based on his possession of a handgun found in an inventory search of his car and with battery by a prisoner in lawful confinement. Byars was convicted of all of the charges.  Byars appealed, arguing that the warrantless withdrawal of his blood violated the Fourth Amendment, and that the resulting evidence should have been suppressed. The state countered that the blood draw was reasonable under either the exigent circumstances or consent exceptions to the warrant requirement.

No exigency.  The Supreme Court of Nevada determined that the natural dissipation of THC from the blood, like that of alcohol, did not create a per se exigency. Moreover, the totality of the circumstances did not establish that exigent circumstances warranted proceeding without a warrant. The State did not demonstrate that waiting for a warrant would cause it to lose evidence of Byars’ intoxication.  “In fact,” the court noted, “there is reason to believe that traces of marijuana in the bloodstream would take longer to dissipate than alcohol.”

No consent. The State alternatively argued that even though Byars refused to submit to the blood draw, he had consented to it by driving on Nevada’s roads. Nevada’s implied consent law, like North Carolina’s, provides that any person who drives on the state’s roadways is deemed to have consented to an evidentiary test of his or her blood, urine, or breath, if an officer has reasonable grounds to believe that the person was driving while impaired. Unlike North Carolina’s implied consent law, however, Nevada law provides that an officer “‘may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested’” if the person does not voluntarily submit to the test. Cf. G.S. 20-139.1(d1) (“If a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.”).  Thus, Nevada makes the consent implied by its statute irrevocable.

The Nevada Supreme Court rejected the state’s contention that McNeely precluded only a categorical exigency exception to the Fourth Amendment’s warrant requirement based on the dissipation of alcohol or drugs from the bloodstream, leaving open the possibility of a categorical statutory consent exception created by state statute. The Byars court noted that though the plurality in McNeely cited implied consent statutes with approval, it did so in the context of noting that such statutes penalized a motorist’s withdrawal of that consent. Because Nevada’s statute did not allow a motorist to withdraw consent, a driver’s imputed consent could not be considered voluntary. Accordingly, the court concluded that the statutory provision allowing the forced withdrawal of blood was unconstitutional.

(Byars won the battle but lost the war as the court went on to conclude that the good faith exception to the exclusionary rule applied in his case.)

State v. Wulff, 2014 WL 5305892, __ P.3d ___ (Idaho 2014).  The Idaho Supreme Court applied similar reasoning in a case decided yesterday (which has not yet been released for publication in the permanent law reports). The defendant in Wulff was arrested for impaired driving and refused a breath test. He was taken to a hospital, where he physically resisted the warrantless withdrawal of his blood. He later moved to suppress the blood draw results.The state argued that McNeely was limited to the exigent circumstances exception to the warrant requirement and that Idaho’s implied consent statute, which allows police to order a blood draw over a driver’s objection, provides a separate and valid exception to the warrant requirement. The Supreme Court of Idaho rejected this narrow reading of McNeely, instead interpreting McNeely’s disapproval of categorical rules to mean that consent implied by state statute could no more constitute a per se exception to the warrant requirement than could the dissipation of alcohol. Thus, Wulff reasoned, consent—like exigency—must be evaluated under the totality of the circumstances, which requires considering whether a person can revoke the consent implied by statute. Because a driver has no right under Idaho law to revoke his implied consent, Wulff concluded that Idaho’s law creates a per se exception to the warrant requirement that is unconstitutional under McNeely. Thus, the Wulff court affirmed the lower court’s granting of the defendant’s motion to suppress.

North Carolina law. North Carolina’s implied consent statutes, unlike those in Nevada and Idaho, generally recognize a driver’s statutory right to refuse chemical testing. There is, however, an exception in G.S. 20-16.2(b) that permits the warrantless testing of suspected impaired drivers who are unconscious or “otherwise in a condition that makes [them] incapable of refusal.” While this categorical exception differs from those deemed unconstitutional in Byar and Wulff in that the tested person is incapable of expressly refusing due to his or her condition rather than a statutory mandate, it is similar in that, as a practical matter, the person has no opportunity to withdraw the consent imputed by statute. Officers encountering such a defendant may wish to seek a warrant when time permits rather than to rely solely on this categorical rule, which appears ripe for challenge.

6 thoughts on “Implied Consent Laws Can’t Provide End-Run around McNeely”

  1. So what happens when a defendant is willing to give a blood test because they have breathing problems and the Trooper and Magistrate refuse to assist the defendant get a blood test? The Trooper would not have needed a warrant because the defendant would have agreed to a blood test.

    The defendant and his witness advised the Trooper that the defendant had life long breathing problems. Of course at hearing[s] the Trooper (commits perjury) and denies he was advised of this fact. After the defendant blew into the machine 6 times and was incapable of providing a sufficient sample the Trooper pushes a button prints out a document that says refused.

    Then the Trooper fabricates some wild story about tong slapping the mouth piece on an intoxilator and he can hear it while under oath at a DMV hearing. According the the Troopers testimony a tong slap makes a distinct sound that only trained professionals such as himself can hear. At the hearing the Trooper stated that if the defendant wanted a blood test he was on his own that it was not his or the magistrates job to assist the defendant obtain a blood test to ‘prove their innocence’ (or guilt).

    The Trooper assassinates the good character of the defendants witness by stating ‘under oath’ that the witness was threatening his life, and the lives of all government employees, obstructing him in the performance of his duty to complete the breath test as if he were crazed, while the defendant was applauding as if he too were crazed (which is a total lie (perjury) and the witness has and IS begging for the State to get an agent and take a lie detector test on the witness. Just to prove to other State agents that heard this crapola that the witness never did or said any such things.).

    This recorded oral testimony was added after the Trooper stated his case and was subjected to cross examination, the defendant testified and was cross examined, then the witness testified and was cross examined. The DMV hearing Officer used these viscous, slanderous, libelous, defamatory, injurious, fraudulent, blatant lies to discredit the witness charter and ignore the fact that the Trooper was in fact advised that the defendant had breathing problems.

    There are 50 if there is one person in NC State agencies that are aware of these FACTS and NONE will step forward to protect the rights of the Citizens. Apparently none of them mind paying taxes to have over crowded court rooms with many innocent people being drug through the wringer. They don’t seem to care if ALL taxpayers are forced to pay for this sort of ‘simulated court practice’.

    Recently it has been discovered that the Trooper[s] in question have apparently falsified their Log entries and falsified ‘public records’. No one in Raleigh seems to care including the Governor, Sec. Of DPS, Commissioner of State Highway Patrol, and Commander of State Highway Patrol they ALL ARE or SHOULD be aware of it.–politics.html?soc_src=mediacontentsharebuttons

    US Supreme Court Justice Samuel Alito: “Constitutional provisions protecting individual rights ‘are worse that useless’ if they are not backed up by government structure to enforce those rights.” Emphasis added mine

  2. First point: No one should ever admit to smoking herb to a cop. What is the matter with people? Keeping your mough shut is the first and primary rule for dealing with cops. Even if a cop has some reason to believe that someone has used cannabis, there is no reason to believe that some exigency applies…weed can stay in your system for a month and intoxication can only be proven if standard tests prove the driver is not safe to drive. Per se laws that try and imply intoxication merely from the presence of cannabinoids in the system and unscientific and should be banned. Since weed smokers are normally not impaired in the manner alcohol impairs, cops want some way to brand all users as intoxicated no matter what.

    Jim: of course cops lie..prosecutors virtually never hold them accountable for even the most egregious falsehoods, even those given under oath, so cops know that absent video proof, they will get away with it. Police perjury is totally common and accepted by cops and DA’s as what they have to do to ” get the job done” and get around the law. The justice system is set up to support the cops no matter what, and until that changes the people are going to be screwed.Cops have no conscience about perjury..if a few were fired and imprisoned that might change..but until then they will keep on lying and are proud of their crimes..what a system.

    • I am shocked and appalled by this entire matter. The whole process is actually a ‘simulated process’ which started at the ‘initial appearance’ before the magistrate. The Trooper[s] in question appear to have falsified their log entries, about who did what where and when which I have managed to obtain. Then the analyst flat out mislead the magistrate concerning the defendants ‘refusal’. When I spoke up while the Trooper was twisting the truth and mentioned that the defendant had a life long history of breathing issues and had told the Trooper I was threatened with contempt by the magistrate if I said another word.

      Brent suggests I set in a Court and listen to some DWI cases. The Districts hap hazard means of showing continuance on the Shuck shows at least 20 continuances where I have sat in the Court room all day for at least 20 occasions and heard a lot of DWI cases and others and each one has went according too the sentencing guidelines.

      Of course the defendant was found guilty in the District Court and is now in the Trial De Novo stag. There was a DMV hearing and the DMV refuses to produce the ‘public records’ for that hearing which went against the defendant. The NC GS suggests that a defendant has a right to appeal the DMV Hearing results within 30 days. That’s hard to do when it takes longer than 1099 days to get copies of those records.

      The defendants paid attorney has not been able to get those records for over three years. The Trooper slandered me at the DMV hearing and the Hearing Officer used that slander to ignore my testimony. Then the Trooper slandered me even more in the District Court suggesting I was making ‘threats against his life, and the lives of all public servants’ which is a flat out lie. I have been begging for years to have a lie detector to prove the Trooper has slandered me and defamed my character.

      All this while under Oath and playing the roll of a saint. In my opinion this clown and his cohort are a disgrace to all NC State agents and agencies and yet they still protect them.

  3. Jim,
    You are making a lot of allegations that I would contend is hard to believe, but nonetheless why do you feel the Trooper is obligated to take the defendant for a blood test? Under NC GS 20-16.2(c), the arresting officer may designate the test or tests to be given. Based on common sense, most officers choose the easiest most convenient test which is a breath test utilizing the Intoximeter EC/IR II. It is important to note that an officer could choose a blood test. In your case, the defendant failed to provide a sufficient sample. If you can prove to the DMV hearing officer that it was NOT a willful refusal then the year revocation would be reversed by the hearing officer. If the health problems truly exist then I am sure you could obtain a signed statement from an appropriate medical doctor indicating that the defendant cannot provide a sufficient sample of breath. Why would you want the blood test? This would then provide direct evidence of the defendant’s alcohol concentration which to be quite honest is not something you want at trial. You would benefit from having no result and winning the appeal with DMV. The Trooper did the defendant a favor by not seeking the blood test. The defendant could have obtained their own blood test after being released and used court approved retrograde extrapolation to prove they were sober at the time of driving if you really had a case of innocent driver arrested.

    For those wondering, the current breath test machine used in North Carolina is the Intoximeter EC/IR II. The device only requires 1.5L of breath with a minimum flow rate of .2L per second. It is extremely easy to provide a sufficient sample of breath. The average human male lung capacity is 6L. Despite all of the money thrown at forensic scientists to try and get rid of breathalyzer results, they have all failed to discredit one of the most accurate and amazing devices, the Intoximeter EC/IR II.

    If anyone thinks defendants charged with DWI are treated unfairly, I encourage you to attend district court in your local jurisdiction and listen in. I think you will find quite the opposite.

    • Brett: The reason the defendant ‘wanted a blood test’ was because HE WAS NOT INTOXICATED. After the defendant was released he tried to get a blood test and both the magistrate and State Troopers (Newton) refused to assist him get one. There were over 20 continuances in the District Court and now the matter is in trial Denovo. DMV refuses to produce the points of law and memorandum of facts and the tapes for over 3 years. After the DMV hearing you have 30 days to appeal it. If they don’t give you access to the records how are you to present your case? Sounds like you are a prosecutor.

  4. This is a really easy problem to solve. I agree forcing someone to give blood is a violation of their rights but so is risking other peoples lives while driving impaired.

    As I said this is a simple problem to resolve, Refusing to submit to a field sobriety test should result in an automatic 2 year suspension of driving privileges, Keeping in mind that driving is a privilege not a right or so they say when they suspend someones licence for not paying child support. So surly if they can suspend someones driving privilege for failing to pay child suport they can do the same for refusing to submit to a field sobriety test.


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