The Eighth Circuit Considers Implied Consent, but I Still Haven’t Found What I’m Looking For

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I admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the Fourth Amendment. A thousand Westlaw searches later, I have yet to find analysis such an analysis by a court. So I was a little surprised when the United States Court of Appeals for the Eighth Circuit explained earlier this summer that the Supreme Court determined more than thirty years ago in South Dakota v. Neville, 459 U.S. 553 (1983), that implied consent testing carried out under threat of license revocation comported with the Fourth Amendment. Did I miss something?

I don’t think so, but you can judge for yourself.

The facts of Wall v. Stanek, 794 F.3d 890 (8th Cir. 2015). Rebecca Wall was pulled over by a sheriff’s deputy for a traffic violation in the early morning hours of June 20, 2011.  The deputy who stopped Wall noticed that she smelled of alcohol and had poor balance. Wall failed multiple field sobriety tests and registered an alcohol concentration of .10 on a portable breath test. She was arrested for impaired driving and taken to patrol headquarters. The arresting officer asked Wall to consent to a urine or blood test to determine her alcohol concentration.  The deputy informed Wall that Minnesota law required her to take such a test, that refusal to take a test was a crime, and that she had the right to consult with an attorney before taking the test. After being so advised, Wall agreed to submit to a urinalysis. Wall failed to produce a urine sample, however, and was taken forty-five minutes later to a hospital, where she agreed to have her blood drawn for analysis. The blood was withdrawn about two hours after Wall was stopped. The resulting alcohol concentration was a .06.  The DWI charges against Wall were subsequently dismissed.

The lawsuit. Rebecca Wall sued the county in federal district court, alleging that it had a policy of conducting warrantless, nonconsensual blood-alcohol tests in violation of the Fourth Amendment. The county moved for summary judgment, arguing that Wall had voluntarily consented to the blood draw. The district court agreed and granted summary judgment for the county.  Wall appealed.

The Eighth Circuit’s analysis. The Circuit Court began by recognizing that Wall had a legitimate expectation of privacy, protected by the Fourth Amendment, in her own blood and the physiological data it contained. Thus, the withdrawal and analysis of Wall’s blood had to satisfy the Fourth Amendment’s reasonableness requirement.  The court characterized the county’s evidence that Wall consented to the blood draw after she was unable to produce a urine sample as undisputed, and noted that consent searches had been deemed reasonable under the Fourth Amendment.  The court rejected Wall’s argument that the choice she was provided between consent and punishable refusal negated the validity of her consent by placing her in an unconstitutional dilemma.

The Eighth Circuit turned for guidance to South Dakota v. Neville, 459 U.S. 553 (1983), a case in which it said “[t]he United States Supreme Court has previously examined the dilemma created by similar implied consent laws.” 794 F.3d at 894. The implied consent statute at issue in Neville penalized a blood-alcohol test refusal with a one-year license revocation and with use of the refusal against the defendant at trial rather than with the criminal sanctions imposed under Minnesota law. The Wall court interpreted Neville as deciding that since blood testing can be compelled,  “‘the offer of taking a blood-alcohol test is clearly legitimate’” and “‘becomes no less legitimate when accompanied by the option of refusing with attendant penalties.’” 794 F.3d at 894 (quoting South Dakota v. Neville, 459 U.S. 553, 563 (1983)). Wall said Minnesota’s imposition of direct criminal consequences did not alter the analysis as Neville “gave no apparent regard to the harshness of [the penalty].” Id.

Wall concluded that Neville, combined with dicta from the plurality opinion in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013), describing implied consent laws as a legal tool that does not require warrantless nonconsensual blood draws, undermined “Wall’s straightforward coercion argument.” 794 F.3d at 894. The court held that “Wall’s dilemma, alone, does not satisfy her burden of nullifying her otherwise uninhibited consent.” Id. at 896.

What Neville really held. The United States Supreme court in South Dakota v. Neville, 459 U.S. 553 (1983), held that the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test did not offend the Fifth Amendment right against self-incrimination. Neville followed the Supreme Court’s determination in Schmerber v. California, 384 U.S. 757 (1966), that a state could force a defendant to submit to a blood-alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination, and it answered a question explicitly left open in Schmerber.

The Neville court accepted the premise, as established by Schmerber, that the State could force a person suspected of impaired driving to submit to a blood-alcohol test, and it evaluated the defendant’s refusal to submit to testing under South Dakota’s implied consent laws against that back-drop. The Neville court concluded that “no impermissible coercion is involved when the suspect refuses to submit to take the test, regardless of the form of refusal.” Id. at 562. In reaching this conclusion, the Court considered the legitimacy of the choice being offered to the defendant, citing Schmerber for the proposition that “[t]he simple blood-alcohol test is so safe, painless, and commonplace . . . that the state could legitimately compel the suspect . . . to accede to the test.” Id. at 563. The Court reasoned that providing the option of refusing to be tested and attendant penalties did not make the blood-alcohol test request less legitimate. The court noted that the State did not “subtly coerce[]” the defendant into choosing the option it had no right to compel; to the contrary, the State’s goal was to have the suspect choose to take the test rather than to refuse. Id. at 563-64.

Followers of my implied consent quest (are there any?) know that the Supreme Court in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013), clarified that Schmerber did not establish a per se exception to the warrant requirement in impaired driving cases. Instead, one must consider the totality of the circumstances in a given case to determine whether a nonconsensual warrantless blood test of a drunk-driving suspect is reasonable under the Fourth Amendment.

In light of McNeely, Neville (which presupposed that all testing of impaired driving suspects could be compelled under Schmerber) cannot be read to resolve the issue of whether implied consent testing is reasonable under the Fourth Amendment. Neville addressed the Fifth Amendment, and it did so in the context of deciding whether the result that the State did not want—refusal—was coerced.  Neville did not address whether a suspect’s submission to such testing under threat of penalty was voluntary.

It may well be that implied consent testing can be reconciled with traditional Fourth Amendment analysis. Perhaps implied consent searches are a new kind of special needs searches. Perhaps breath tests may be justified under a per se exigency exception even if blood tests are not. Whatever the ultimate explanation, the Eighth Circuit’s reasoning does not end my quest.

10 comments on “The Eighth Circuit Considers Implied Consent, but I Still Haven’t Found What I’m Looking For

  1. It seems the question is the legality of “implied consent.” If the courts have ruled that implied consent is a defensible legal theory, and so by using the highways and byways of the state, you are consenting to certain rules, regulations and conditions, then I don’t see where any argument about license revocation as a threat carries any weight.
    Then it goes to reasonableness. Is it reasonable, in the interest of public safety, to compel a driver to submit to a alcohol test (blood or breath), the penalty for refusal being the revocation of the driver’s license? Many would say yes.
    Would it be reasonable for the state to take the position that “implied consent” meant that by operating on the public roads, you must allow the police to randomly stop and search you, in the interest of public safety, the penalty for refusal being the revocation of the driver’s license? Most would say no.

    But good luck in your quest.

    • I think that your analysis may be exactly what a court will ultimately decide. But scrapping the probable cause + warrant requirement (or an exception to the requirement) in favor of a reasonableness test is a departure from traditional 4th Amendment analysis as applied to criminal investigations.

  2. First of all let’s do away with the misconception that operating a motor vehicle on a street or highway is a “right”. It is NOT a right. It is a privilege extended to you by the state under some very specific conditions to be met or you simply are not allowed to operate a motor vehicle on our street or highways.

    One of those specific conditions of privilege is that you CONSENT to Blood Alcohol Tests when requested when you exercise a state controlled PRIVILEGE of driving on a street or highway or YOU DON’T DRIVE.

    What is so hard to understand about this?

    There is absolutely no conflict with the 4th Amendment because you are in no way forfeiting 4th Amendment protections because YOU have the option of NOT availing yourself of a driver’s license if you don’t care to make that perfectly legal consent for that PRIVILEGE…remember, NOT a right.

    If you don’t like the conditions of the PRIVILEGE then you are certainly entitled to WALK. Yes, …you have a RIGHT to “walk” unmolested anywhere you choose.

    Society via legislation and government has a clear “right” to ensure the safety of society at large with implied consent provisions. It’s called a State’s Right.

    • 1. States don’t have rights. They have powers.

      2. While I think the courts are wrong on this, you are correct that driving on the public roads is a privilege, not a right.I think they’re wrong because they’re OUR roads, not the government’s. We built them with our taxpayer money. But as I say, the courts disagree with me.

      3. You’re completely wrong about the non-applicability of the 4th Amendment to people driving on the roads. It’s absolutely clear that a cop can’t stop you on the roads absent reasonable suspicion, or a proper traffic checkpoint (with which I also disagree with the courts).

      • I didn’t say that the 4th Amendment didn’t “apply”…I wrote that there was no “conflict” with the 4th Amendment.

        There seems to be a LOT you don’t agree with. Good luck with that.

  3. I understand the law in North Carolina. As JW states, you have impliedly consented to a test of your blood or breath by using the public streets or highways in North Carolina and, if you fail to abide by that consent, you are subject to license revocation. However, the revocation is a civil penalty. The action is civil. And there is no threat of incarceration.
    As I understand Shea’s explanation of the Eighth Circuit case, there was a criminal provision and failure to abide by the implied consent of that state could result in incarceration (I assume because it was criminal).
    Am I the only one that thinks that changes the 4th Amendment analysis?

    • Just saying a law exists doesn’t mean it’s OK. Just because North Carolina passes laws like, say, the implied consent statutes, doesn’t mean they’re constitutional. That’s the issue Ms. Denning is discussing: can Implied Consent statutes stand under Fourth Amendment scrutiny? I don’t think it matters whether the penalty for a refusal is civil or criminal; if the government can’t administer a breath test absent knowing, actual consent, then ANY penalty is unconstitutional.

  4. I don’t recall if this was law when I got my license so many years ago, but I wonder: what does the D.M.V do to inform drivers ( both new and renewals ) about this? Would the information provided to new and renewed drivers licensees about implied consent make any difference?

  5. Shea,
    Does Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (Ga., 2015) get to the heart of your question? The opinion explains that: “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” The opinion at least implies that a consent given under the threat of consequences under an implied consent statute is not a voluntary consent for constitutional purposes.

  6. I agree that there is a dissonance between fourth amendment jurisprudence and “implied consent” statutes. The notion that driving is a “privilege” and therefore justifies implied consent also seems inapposite with the SCOTUS’s decisions that a driver has a property interest in their license and must be afforded due process. If due process is required how can anything less than a “reasonable” compliance with the 4th Amendment be tolerated? McNeely highlights the point that 40-50 years ago exigency was compounded by the difficulty in obtaining warrants, so in some sense “implied consent” was treated as an extension of Schmerber’s per se rule. With McNeely’s holding undercutting that legal basis, it is difficult to see how “implied consent” can continue to survive as a reasonable replacement for a warrant or actual consent. Also, it is important to note that the Skinner case from SCOTUS decided unequivocally that breath testing was a search within the meaning of the 4th Amendment. In other words, as a matter of 4th Amendment law, if “implied consent” is an insufficient basis for overcoming the warrant requirement in blood cases (as the Williams case holds) then it is also necessarily an insufficient basis for overcoming the warrant requirement in breath cases. Lastly, I wholeheartedly agree that Neville does not stand for the proposition that “implied consent” is an exception to the warrant requirement. This is an issue that will ultimately have to be addressed by the SCOTUS.

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