The Theory of Implied Consent

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A few weeks ago, I blogged about the offense of operating while impaired.  One of the issues I raised in the post was whether telling a defendant that his or her refusal to submit to a breath test in such a case was admissible at trial amounted to coercion that rendered the consent involuntary.  A reader and respected Fourth Amendment scholar wrote me to say that, in his view, the defendant’s consent in such cases was constitutionally unnecessary as an officer who suspected a defendant of operating while impaired could, based upon exigent circumstances, take a boater’s breath or blood sample, without a search warrant and without the necessity of consent.  This argument is based on the premise that the dissipation of alcohol always creates an exigency sufficient to justify a warrantless search of a defendant who is suspected of operating or driving while impaired.  See, e.g., State v. Netland, 762 N.W.2d 202 (Minn. 2009) (holding that the criminal test-refusal statute does not violate the Fourth Amendment “because under the exigency exception, no warrant is necessary to secure a blood-alcohol test where there is probable cause to suspect a crime in which chemical impairment is an element of the offense”).  The contrary view is that while the dissipation of alcohol may create an exigency, it doesn’t automatically do so in every case.  In order to establish that the search was conducted under this exception to the warrant requirement, the State must demonstrate some significant delay associated with the obtaining of a search warrant.  See, e.g., State v. Fletcher, __ N.C. App. ___, 688 S.E.2d 94 (2010) (finding exigent circumstances justifying warrantless blood draw where officer testified to delays associated with obtaining a warrant based on distance to magistrate’s office and expected wait times there and at the hospital on a weekend night).

In any event, this discussion caused me to question the legal significance of the warnings given in implied consent cases.  If the State can readily (if not automatically) establish an exigency that would permit it to obtain a breath or blood sample without the defendant’s consent, then why ask for consent?  And why tell a defendant that he or she may refuse to be tested?

One commentator writing about this subject a year after New York’s enactment of the first state statute requiring drivers to consent to a chemical test for intoxication noted the paradox in providing that “although the driver has constructively consented to take the test, when the chips are down and he is actually apprehended he may renege on his imputed promise and refuse.”  Jack B. Weinstein, Statute Compelling Submission to a Chemical Test for Intoxication, 45 J. Crim. L. Criminology & Police Sci. 541, 543 (1954-55).  Professor Weinstein recognized the “practical merit” of coupling free choice with mandatory consent, stating that freedom to refuse “prevents the unseemly struggle likely to arise when an intoxicated driver refuses to do what the police insist he is bound to do,” while implied consent in advance avoids the need for explicit consent from a heavily intoxicated person or from someone rendered dazed or unconscious in a crash.  Professor Weinstein wrote that these practical concerns were not, however, the impetus for the choice/consent dichotomy.  Instead, the drafters viewed the coupling of implied consent with the ability to refuse as a method for avoiding any question about a driver’s constitutional right to refuse to take the test:  By accepting the privilege to drive, a person waives any constitutional right to refuse the search.  Weinstein acknowledged doubts about whether, in actuality, this “indirect approach using a theory of conditions” avoids the need for constitutional analysis.

Weinstein also raised the question I started with.  If there is no legal objection to forcing a person to submit to the test, why have an implied consent statute at all?  He answered that question by noting that states do not always exercise their police powers to the fullest extent of constitutional limitations and that implied consent statutes codify protections against police abuse.

Implied consent statutes attempt to secure defendants’ submission to testing while avoiding “violent police-citizen confrontation” by providing for the revocation of a person’s privilege to drive for refusing to be tested. See Comment, The Theory and Practice of Implied Consent in Colorado, 47 U. Colo. L. Rev. 723 (1976).  Yet the threat of license revocation undermines any argument that a breath or blood test is voluntary.  Thus, another commentator opines that “the state can use this threat only under the same circumstances that it can use force; viz, if the search would have been a reliable one, done pursuant to a lawful arrest, in a reasonable, medically approved manner, where the arresting officer had probable cause to believe that the licensee was indeed intoxicated.”  Id. at 762.  Other writers likewise have rejected the notion that implied consent may fairly be equated with actual consent.  See Zaleha, Alaska’s Criminalization of Refusal to Take a Breath Test:  Is It a Permissible Warrantless Search Under the Fourth Amendment, 5 Alaska L. Rev.263, 289 (1988); Lerblance, Implied Consent to Intoxication Tests:  A Flawed Concept, 53 St. John’s L. Rev. 39, 63-64 (1978).

There is surprisingly little case law in North Carolina analyzing the theoretical underpinnings for the state’s implied consent laws, though the courts have repeatedly upheld the statutory provisions against constitutional attack.  In Sedars v. Powell, 298 N.C. 453 (1979), the state supreme court adopted the rationale that “anyone 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.”  The court has reaffirmed the principle of implied consent in criminal cases and has held that the right to refuse testing is a matter of legislative grace rather than a constitutional right.  See State v. Howren, 312 N.C. 454 (1984).

Given case law providing for suppression of chemical analysis results based on the failure to afford a defendant rights guaranteed not by the constitution but instead by the implied consent statutes, see, e.g., State v. Hatley, 190 N.C. App. 639 (2008); State v. Myers, 118 N.C. App. 452 (1995); State v. Shadding, 17 N.C. App. 279 (1973), I wonder about the extent to which implied consent statutes aid the State’s prosecution of impaired driving cases.  Might those prosecutions be better facilitated by scrapping the notion of implied consent and resorting to compulsory testing?  Thirty years ago, one writer advocated this view, concluding that:  “Although implied consent developed as a means of facilitating the use of chemical evidence, the statutes currently constitute the primary barriers to the use of that evidence in as many as forty-five percent of potential DWI prosecutions. In addition, implied consent procedures produce disparities in the treatment of drunk drivers, to the advantage of those who are aware of the benefits of refusing chemical testing. If these adverse consequences are not necessary to avoid the potential evils of physical coercion in administering the tests, then states have no reason for retaining them.”  Bruns, Driving While Intoxicated and the Right to Counsel:  The Case Against Implied Consent, 58 Tex. L. Rev. 935, 959 (1980).

Readers, what do you think?

4 comments on “The Theory of Implied Consent

  1. Jeff: I do not know about the original intent of the drafters, but implied consent laws continue to exist for the simple reason that you cannot practically force someone to blow into a machine. Also, it is not practical to take every suspect to a hospital to draw blood. I believe that the sounder view is that exigency is always present and what you have is a simple Fourth Amendment search based upon probable cause, which, of course, does not require consent to be lawful. The mistake is tying implied consent procedures in with admissibility of the chemical test results. Delaware is the only State that I know of that has solved this problem. See 21 Del. C. 2741(a) and 2750; see also, Seth v. State, 592 A.2d 436 (Del. Supr. 1991).

  2. On a related note, how exactly does riding a bicycle while impaired qualify as an implied consent crime if there is no licensure aspect to riding a bike on a public way? Driving might be a “privilege,” as we are told ad nauseum, but riding a bike on a side street is not a privilege, it is a right we apparently have from the age at which we learn to ride a bike until the day we die, no license required. So how is it that a cyclist who police have probable cause to believe is impaired can be made to blow under threat of losing the license that wasn’t necessary to ride the bike in the first place?

  3. I understand the implied consent law now, too late to help me out. However, the document I was asked to sign when I refused to blow does not in any way state that I will not even be able to request a hardship license so I can keep my job. Knowing that whether I blew or did not blow would result in loss of driving priveledges, I opted not to blow. It would have been nice if the official document I signed explained the consequences of my refusal. Had the simple phrase “By refusing to consent to the test. you will not be eligible for a restricted or hardship license for a period of 6 months to a year”, been included on the form, I would have ran to the breathalyzer and blew my heart out. Now I risk losing my job, the ability to feed myself and keep a roof over my head.

    • David: Even if you opted to blow it appears that at the officers discretion he can push a button that says you refused. I know a man that blew 6 times and the machine read insufficient sample each time. The man has COPD and was unable to give the sample demanded. The Officer was advised that the man was born with breathing problems by the man and a witness. The officer just pushed a button and printed out a refused ticket. At the first hearing (after initial) it was determined that the man did not refuse and that it was the machines failure to perform not the man. None of that matters however. After nearly 3 years, 25 continuances and a mock trial the State got a conviction which was appealed and is still pending over 4 years later.

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