Re-examining Implied Consent After McNeely, Part II

Yesterday’s post discussed challenges to implied consent laws raised by defendants following the Supreme Court’s decision last spring in Missouri v. McNeely, 133 S.Ct. 1552 (2013). The post summarized the Arizona Supreme Court’s holding 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. Applying that standard, the court in State v. Butler, 302 P.3d 609 (Ariz. 2013) (en banc), determined that the trial court did not err in suppressing evidence of a blood draw from a juvenile arrested for impaired driving. Today’s post discusses a recent opinion from the Minnesota Supreme Court applying the same standard, but reaching a different result.

State v. Brooks, __ N.W.2d ___, 2013 WL 5731811 (Minn. October 23, 2013). The Minnesota State Supreme Court in a case decided last month considered whether the police violated the defendant’s Fourth Amendment rights when they took blood and urine samples from him pursuant to the state’s implied consent laws without a search warrant.

Facts. The defendant was arrested for impaired driving three times within a six month period. Each time, he was read Minnesota’s implied consent advisory, which informs drivers that Minnesota’s law requires them to take a chemical test, that refusing to take a test is a crime, and that drivers have the right to talk to a lawyer before deciding whether to take a test. The defendant also was advised of his right to consult an attorney, a right that he exercised in each instance before submitting to testing.

Argument. The defendant moved at trial to suppress evidence of the tests, arguing that the State was required to obtain a warrant before conducting these searches as there was no exigency and no voluntary consent. The defendant pointed out that he agreed to chemical testing only after the police told him that refusal to do so was a crime. He contended therefore that his consent was not voluntary but instead was coerced.

Analysis. In analyzing the defendant’s claim, the Minnesota Supreme Court invoked the reasoning of the United States Supreme Court in South Dakota v. Neville, 459 U.S. 553 (1983). Neville held that a defendant’s refusal to submit to a blood-alcohol test pursuant to an officer’s lawful request was not an action protected by the Fifth Amendment privilege against self-incrimination; thus, evidence regarding a suspect’s refusal to submit to chemical testing was admissible. Central to Neville’s analysis was its determination that no impermissible coercion was involved when the suspect refused testing. Neville explained that since the “offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice.” Id. at 563.

Brooks reasoned that, notwithstanding Neville’s examination of coercion within the context of the Fifth Amendment, the question before the Neville Court was “whether the existence of a consequence for refusing to take a chemical test rendered the driver’s choice involuntary.” Neville’s conclusion that the consequences attendant to a refusal did not amount to impermissible coercion led the Brooks court to conclude that “a driver’s decision to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test.”

Brooks distinguished the defendant’s consent from that deemed involuntary in Bumper v. North Carolina, 391 U.S. 543 (1968). In Bumper, the police sought to justify search of house based on the owner’s consent, contending she consented after police told her they had a warrant. The Court held that this sort of submission to authority was not consent. Brooks distinguished Bumper on the basis that Minnesota law afforded a suspect the absolute right to refuse chemical testing. Brooks further held that the defendant’s arrest did not render his consent coerced as he was not confronted with repeated police questioning, nor was he asked to consent after having spent days in custody. The defendant’s consultation with an attorney reinforced the court’s conclusion that his consent was not illegally coerced.

The court clarified that it did not “hold that [the defendant] consented because Minnesota law provides that anybody who drives in Minnesota ‘consents  . . . to a chemical test.’” Instead, it determined that the defendant consented based on a totality of the circumstances.

Concurrence. Justice Stras concurred in the court’s judgment for reasons that diverged sharply from the majority’s analysis. She called the court’s conclusion that the defendant’s consent was voluntary mistaken, noting that “[i]t is hard to imagine how [the defendant’s] consent could be voluntary when he was advised that refusal to consent to a search is a crime.” Stras would have affirmed the decision below to admit the evidence based on Davis v. United States, 131 S.Ct. 2419 (2011), which held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Stras noted that the police gathered the samples from the defendant in accordance with State v. Netland, 762 SW.2d 202, 214 (Minn. 2009), which approved of the warrantless collection of blood-alcohol evidence based solely on the evanescent nature of alcohol in the bloodstream, a holding abrogated by McNeely. “Netland was wrongly decided,” Stras wrote, “but that was our mistake, not a mistake by law-enforcement officials.”

Further thoughts. Neither Butler nor Brooks relied upon implied consent as vitiating Fourth Amendment concerns. It is unclear whether, if asked to reconsider its analysis, the North Carolina Supreme Court would depart from its previously expressed view that “anyone who accepts the privilege of driving upon our highways has already consented to [chemical testing for alcohol] and has no constitutional right to consult a lawyer to void that consent.” Sedars v. Powell, 298 N.C. 453, 462 (1979). In the third and final post in this series, I’ll discuss shortcomings of the voluntary consent analysis and describe an alternative framework for analyzing the constitutionality of implied consent.