The Latest on McNeely and Implied Consent

Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.

Missouri v. McNeely refresher.  The United States Supreme Court held in McNeely 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.

The implied consent issue. Implied consent statutes authorize the gathering and chemical testing of breath, blood and urine from drivers suspected of driving while impaired. Testing under implied consent laws is carried out without a warrant. Suspects are advised of the penalties for refusing such testing, which always include a lengthy driver’s license revocation and, in a handful of states, include criminal prosecution.  After that advisement, they are requested to submit to testing.  Some states, like North Carolina, permit the warrantless testing of unconscious suspects who do not expressly acquiesce to such testing.

Why McNeely matters. In holding that there was no per se exigency that excused the Fourth Amendment’s warrant requirement in every impaired driving case, McNeely undermined one of the legal justifications for implied consent testing. If a warrant is sometimes required, then courts must consider on a case-by-case basis whether chemical testing was carried out in accordance with the Fourth Amendment.  Consent to a search is a well-recognized exception to the Fourth Amendment’s warrant requirement, but some litigants have questioned whether a suspect’s acquiescence to testing after being advised of the consequences for refusing is voluntary consent.

Before McNeely, courts uniformly rejected such challenges, either on the theory that, by driving, a person preemptively consented to being tested or that the search could have been compelled without a warrant given the exigency created by the dissipation of alcohol and/or drugs from the body.

After McNeely, state courts are divided in the analysis they employ to determine whether testing carried out pursuant to implied consent statutes is lawful.  No court has held that such testing is categorically unconstitutional. Some have, however, determined that courts must employ a totality of the circumstances analysis in evaluating whether a suspect’s consent to implied consent testing was voluntary. No longer may courts in those jurisdictions consider testing pursuant to implied consent procedures as categorically lawful. See, e.g., State v. Butler, 302 P.3d 609 (Ariz. 2013) (independent of implied consent law, “the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw”); Williams v. State, 771 S.E.2d 373 (Ga. 2015) (holding that the fact that the suspect agreed to be tested after being read the statutory implied consent notice did not establish that he gave actual consent to the extraction of his blood; requiring the State relying on the consent exception to the warrant requirement to prove that the defendant acted freely and voluntarily under the circumstances). Other courts have continued to rely upon the theory that by driving on state roads a person consents to chemical testing; thus testing carried out under implied consent laws is constitutionally permissible unless the person withdraws consent. See, e.g.Wall v. Stanek, 794 F.3d 890 (8th Cir. 2015). At least one court has articulated a new theory under which implied consent testing of a suspect’s breath is constitutionally permissible, determining that such searches are a permissible search incident to arrest. See State v. Bernard, 859 N.W.2d 762 (Minn. 2015).

Here’s the update.  Two recent opinions add to the schism.

On the totality of the circumstances side, the Supreme Court of Hawaii in State v. Won, __ P.3d ___, 2015 WL 7574360 (Haw. Nov. 25, 2015) (not yet released for publication in permanent law reporter), concluded that the defendant’s submission to a breath test after being informed that refusing such a test was a crime was not consensual. The court held that it is manifestly coercive to present a person with a choice that requires surrender of the constitutional right to refuse a search in order to preserve the right to not be arrested. The court explained that the coerciveness of the circumstances was enhanced by the severity of the statutory penalty for refusal. Because the Won court considered only the coercive aspects of the crime of refusal, and not the accompanying civil license revocation, its holding may prove of limited application in jurisdictions like North Carolina where refusal is not an independent crime.

On the implied consent side, the Court of Appeals of Idaho in Bobeck v. Idaho Transp. Dep’t, ___ P.3d __, 2015 WL 5602964 (Idaho Ct. App. September 24, 2015) (not released for publication in the permanent law reports), rejected the petitioner’s claim that her driver’s license should not have been suspended because her blood was withdrawn while she was unconscious pursuant to a provision of the state’s implied consent laws that permitted such testing. Though the court said it was not required to determine the legality of the blood draw in the administrative license suspension context, it addressed the petitioner’s argument anyway. The court reasoned that any person who drives in Idaho consents to be tested for alcohol at the request of an officer who has reasonable grounds to believe the person was driving while impaired. The petitioner in Bobeck did not withdraw the consent that was previously implied by operation of law by objected to or resisting the blood draw. Thus, the court concluded that the driver’s “statutorily implied consent was effective at the time of the warrantless blood draw as it was justified by the Idaho’s implied consent statute.”  Given that North Carolina’s implied consent statute similarly authorizes warrantless testing of an unconscious defendant, the Bobeck court’s holding may be of interest to litigants here.