No, Virginia, there is no implied consent

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I’m eagerly awaiting the Supreme Court’s ruling in Missouri v. McNeely. I want to know whether the exigency created by the dissipation of alcohol in the body, without more, permits the police to compel the withdrawal of blood from an impaired driving suspect without a warrant. But there’s one thing I already know: The legal fiction of implied consent will play no part in the analysis.

Indeed, the State made no argument that Missouri’s implied consent law, see Mo. Ann. Stat. § 577.020 (West), obviated the need for the Fourth Amendment analysis. And the justices’ probing questions regarding the State’s ability to forgo constitutional protections when it came to a procedure that intruded into the body demonstrated the likely futility of any assertion a state can avoid the Fourth Amendment analysis in a refusal case by enacting laws that imply or require consent to such a search.

Yet, while state courts (including our own) rely on the Fourth Amendment requirements in analyzing the constitutionality of warrantless compelled blood draws, courts frequently rely on the legal fiction of implied consent as rendering lawful the obtaining of breath samples under threat of license revocation. See, e.g., Seders v. Powell, 298 N.C. 453, 462 (1979) (“[A]nyone who accepts the privilege of driving upon our highways has already consented to the use of the breathalyzer test and has no constitutional right to consult a lawyer to void that consent.). I don’t think the implied consent analysis holds up. Even though breath tests indisputably are less intrusive than blood draws, they nevertheless are searches that implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17 (1989). Thus, they too must satisfy the Fourth Amendment’s requirements–regardless of whether a state legislature sanctions their use.

Given that officers do not routinely (if ever) obtain a search warrant before asking a suspected impaired driver to submit to a breath test, consideration of the Fourth Amendment raises the sticky question of whether such searches qualify under an exception to the warrant requirement—an issue that Chief Justice Roberts raised at oral argument in McNeely. When the chief justice asked McNeely’s attorney whether the police needed a warrant to conduct a breath test, the attorney responded that he thought the police probably did need a warrant. That led the chief justice to remark that if the logic of the respondent’s position “leads to the requirement of a warrant for a breathalyzer, that would be pertinent” to the court’s analysis. Justice Scalia threw the respondent a lifeline of sorts, suggesting that he “not bite off more than he could chew,” and positing that what was reasonable for “sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon.”

Whatever the court’s ruling in McNeely, I doubt that it leads to a determination that a warrant is required to force an impaired driving suspect to provide a breath sample. Even if the dissipation of alcohol alone is not enough to render permissible a warrantless blood draw over a defendant’s objection, it may, as Justice Scalia intimated, be sufficient to render permissible a warrantless breath test. Even absent an exigency, searches of deep lung breath may be the type of nonintrusive search that may be conducted incident to arrest. Several courts have upheld breath testing following an arrest for impaired driving on this basis. See United States v. Reid, 929 F.2d 990 (4th Cir. 1991) (finding breath tests permissible under the exigency and search incident to arrest exceptions to the Fourth Amendment’s warrant requirement); Burnett v. Municipality of Anchorage, 806 F.2d 1447 (9th Cir. 1986) (concluding that a breath test following an arrest for impaired driving “is an appropriate and reasonable search incident to arrest” that arrestees “have no constitutional right to refuse”); Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012) (“[T]he statutory scheme that requires a DUI arrestee to take a chemical breath test is a valid search incident to arrest under either theory of DUI [the “under the influence” theory and the “blood alcohol level” theory] when there is independent evidence to charge the arrestee with driving under the influence.”); Commonwealth v. Anderi, 477 A.2d 1356 (Pa. Super. 1984) (concluding that “warrantless seizure of appellant’s alcohol-laden breath is valid either as a search incident to arrest . . . or a search necessitated by exigent circumstances, i.e., the evanescent nature of alcohol in the appellee’s blood stream.”)

So, Virginia, warrantless breath testing likely is constitutional. But, where the Fourth Amendment is concerned, there is no implied consent. And the jury (or rather, the supreme court) is out on compelled warrantless blood draws.

6 comments on “No, Virginia, there is no implied consent

  1. I have never thought of the “Implied Consent” law as a Fourth Amendment exception. Perhaps better wording could have been used when this regime was first implemented, but the administrative penalty for a violation of implied consent serves the purpose of encouraging a suspect to cooperate with a breath test (it’s difficult to conduct a breath test without the suspect’s cooperation, but it is still just a search). The Fourth Amendment is satisfied by the existence of probable cause and exigent circumstances. Of course, one can question the existence of exigency, but personally, I think the exigency is Res Ipsa Loquitur.

  2. As a retired police officer from outside NC, I dealt with many instances of bringing a suspected DWI to the hospital for a blood test. This was always due to medical assistance being necessary for the offender and not because they wouldn’t “blow”. As time moves on, alcohol dissipates and the longer one waits the lower the BAC. If officers are required to obtain a warrant first and judges are not on call 24/7, valuable evidence is lost to the detriment of society. Are we to become a society where an offenders rights supersede those of the many. If one drinks and gets in their car they should be treated as one who waives their rights…period!

  3. The privilege against self-incrimination is “[t]he privilege derived from the Fifth Amendment, U.S. Const., and similar provisions in the constitutions of states….[that] requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself….”Black’s Law Dictionary, p. 1078 (5th ed. 1979)

    So doing a breath test is against your 5th Amendment….

  4. There are two general circumstances when a search warrant is not required: (1) when one of the well-recognized exceptions, e.g., exigent circumstances, has been established, and (2) when the person consents to the search. An argument can be made by the government that the existence of an implied consent statute, coupled with the voluntary act of driving by the defendant, amounts to the consent necessary to excuse the search warrant requirement. It can also be argued that a defendant cannot revoke this consent after it has been given by driving. See for example State v. Dewitt, an Idaho Supreme Court case decided in 2008.

    The Missouri Supreme Court in the last footnote of its decision stated that it did not reach the implied consent argument of the prosecution because the search violated the Fourth Amendment. The U.S. Supreme did not address the effect of implied consent and merely addressed the issue of exigency, which was the sole basis for the Missouri Supreme Court decision. At this point, I believe it is open for debate whether the McNeely decision stands for the proposition that implied consent does not affect the need to obtain a warrant or if it merely reflects that the U.S. Supreme Court focused on the sole basis for the state court decision.

    . . . and, sorry Dave. The Fifth Amendment applies to prevent a defendant from being compelled to provide statements that are incriminating. It does not address a defendant providing physical evidence. Or as put by the U.S. Supreme Court in Schmerber v. California (the 1966 decision that was focused on in the McNeely decision) the Fifth amendment is not implicated in a blood draw because the Fifth Amendment is limited to “evidence of a testimonial or communicative nature.”

  5. Here’s my question: Can the exercise of ones 4th amendment rights be criminalized? In Va 2nd refusal (refusal after a prior dui conviction) is a class 2 misdemeanor , punishment up to 6 months in jail (in DC its a class 1, punishment to 1 year in jail). An Implied consent law , says the driver has “impliedly” consented to the taking of his blood or breath by the mere act of obtaining a driver’s license. This is similar to laws ‘implying” consent to search where gov. seeks to enforce regulations. In Camara v. Municipal Court of City and County of San Fracisco, 387 US 523, 540 ( US Cal 1967) a individual was criminally charged for refusing to allow an inspection of real property, an implied consent statute made this a criminal offense. The court
    ruled : we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection”
    I believe a similar result happened recently in Florida where a statute mandated that public assistance recipients waived their 4th amendment rights and are subject to drug testing at any time,l the statute , I believe was found to be unconstitutional.

  6. What date did the implied consent laws come in affect in Virginia

  7. Wow were you wrong!
    They ruled that a warrant is still required!
    Like the Constitution says!
    NO WAY!

    AND TECHNICALLY…
    FORCIBLE INSERTION OF A PLASTIC TUBE IN ONES MOUTH…
    IS RAPE!

    AND REQUIRED WAIVER OF RIGHTS UNDER CRIMINAL PENALTY…
    IS EXTORTION!

    GET WITH IT LAWYERS.

  8. But really,
    what about cruel and unusual punishments?
    Anyone else stick a dirty plastic tube in your mouth, used by only God knows who, cleaned with only God knows what adulterating chemical sanitizer that might render the result invalid.
    Swabbed with who knows what before a needle’s insertion.
    Also rape, a violation of personal safety with a sharp object.
    Without what legally required document, testimony, and justification?
    Sheesh are you all out of whack.

    At what point do you think stealing from my body isn’t a violation of my 4th and 5th refusal to willingly submit evidence?

    You can take it from my home or my car, but not my body!

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