Every state in the United States has some variation of an implied consent law. Missouri v. McNeely, 569 U.S. 141, 159–60 (2013) (plurality opinion). The laws are so named to reflect the implication of consent a person gives to have his or her blood content searched for the presence of intoxicating substances in exchange for the right to lawfully operate a motor vehicle on public roadways. In most cases, such consent may be withdrawn, but a driver will likely face administrative consequences for doing so, such as a suspension of driving privileges.
These laws are a valuable tool in the fight against drunk driving and, at first blush, can seem relatively straightforward. Do not be fooled, however; these laws are not always what they seem, and courts have been inconsistent in their handling of implied consent statutes. For this reason, it is worth understanding the legal questions at play in implied consent laws and how these laws can materially differ from state to state.
A Review of Warrantless Searches in DUI/DWI Cases
Generally speaking, implied consent laws are constitutional. However, like any law, implied consent laws are subject to limitations.
Not the least of these limitations is the Fourth Amendment to the US Constitution, which protects the right of the people, in the absence of a warrant based on probable cause, to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The word most contested in implied consent cases is “unreasonable”; that is, under what circumstances does the Fourth Amendment reasonably permit a warrantless search? To this end, and as is most pertinent to DUI/DWI cases, the US Supreme Court has recognized three exceptions to the warrant requirement: search-incident-arrest, exigent circumstances, and consent. These exceptions were explored in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), a seminal case in which the Court departed from its historically favorable treatment of implied consent laws to outline the limits of these warrant exceptions as applied to DUI/DWI cases.
To start, a breath test conducted incidentally to a lawful arrest is categorically exempted from the Fourth Amendment’s warrant requirement. Id. at 2184. The Court balanced the privacy concerns implicated by breath tests against the government’s “need to obtain BAC readings for persons arrested for drunk driving” and found in favor of the government, calling the physical intrusion wrought by a breath test “negligible” and describing the information gleaned by law enforcement from a BAC test as lacking in any “highly personal information.” Id. at 2176–84. In addition, the Court pointed out how even if a warrant was not obtained, probable cause likely existed all the same because to obtain a search warrant, “the officer would typically recite the same facts that led the officer to find that there was probable cause for arrest, namely, that there is probable cause to believe that a BAC test will reveal that the motorist’s blood alcohol level is over the limit.” Id. at 2181. These facts could include, for example, “a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on.” Id.
In contrast to breath tests, for warrantless blood tests conducted incidentally to a lawful arrest, the Birchfield Court declined to create a categorical exception to the Fourth Amendment’s warrant requirement, reasoning a blood draw was “significantly more intrusive” than a breath test and noting the government lacked any “satisfactory justification for demanding the more intrusive alternative [to a breath test] without a warrant.” Id. at 2184. To detect intoxicating substances not detectable by breath test, the Court observed, “Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so . . . or from relying on the exigent circumstances exception to the warrant requirement when there is not.” Id.
Of interesting note, the Court declined to draw a distinction between “an arrestee’s active destruction of evidence and the loss of evidence due to a natural process”—i.e., the body’s natural metabolization of alcohol. Id. at 2182–83. This rendered untenable the argument that the search-incident-to-arrest exception is appropriate only when the government’s interest in preventing “the arrestee from obtaining a weapon or taking steps to destroy evidence” is at issue. Id. at 2182. Instead, the Court held the search-incident-to-arrest exception contemplates “‘evidence preservation’ or avoiding ‘the loss of evidence’ more generally,” and therefore “readily encompasses the inevitable metabolization of alcohol in the blood.” Id. at 2182 (citing Riley v. California, 134 S. Ct. 2473, 2484 (2014)).
On the same question, however, some states have reached a different answer. For example, in 2014, the Texas Court of Criminal Appeals held the opposite (despite, oddly enough, also citing Riley for support), saying, “the [US] Supreme Court has suggested that the search-incident-to-arrest exception is most commonly applied to an ‘active attempt by a defendant or his associates to conceal or destroy evidence upon arrest.’” State v. Villarreal, 475 S.W.3d 784, 807–08 (Tex. Crim. App. 2014) (citing Riley, 134 S. Ct. at 2486). “Given that alcohol in the bloodstream dissipates at a predictable rate and is encased within a defendant’s veins,” continued the Texas court, “there is no possibility of that evidence being subject to sudden destruction or disappearance as a result of any active efforts by a defendant.” Id. (emphasis added).
The exigent circumstances exception to the warrant requirement applies “when the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460 (2011) (citing Mincey v. Arizona, 437 U.S. 385, 394 (1978) (internal quotations omitted)). The most typical examples of judicially recognized exigencies include circumstances where emergency aid is needed and where the imminent destruction of evidence must be prevented. See id. The latter of these exigencies is most applicable to DWI/DUI cases, as BAC evidence is “inherently evanescent.” Missouri v. McNeely, 569 U.S. 141, 152 (2013). Unlike the search-incident-to-arrest exception, however, the US Supreme Court declined to adopt a categorical rule that would allow the evanescent nature of BAC evidence to always be treated as an exigency. Id. at 152–53. Instead, the Court held that exigency “must be determined case by case on the totality of the circumstances.” Id. at 145.
Finally, a warrant is not required when a person consents to a search. In nearly all DUI/DWI cases, this consent is obtained in advance through a state’s implied consent law but can always be withdrawn later. See, e.g., Florida v. Jimeno, 500 U.S. 248, 252 (1991) (“A suspect may of course delimit as he chooses the scope of the search to which he consents”).
Courts are, generally speaking, in agreement as to the broader legal principles undergirding implied consent laws. Virtually no one, for example, believes that consent is freely given when procured by threats of further criminal prosecution for withholding consent. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016) (holding “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense”). But when it comes to more nuanced issues—such as determining when consent is freely given, the revocability of implied consent, and whether a person’s refusal to give consent may be used against him or her at a subsequent criminal trial—courts are still discerning the boundaries of implied consent laws, as the examples in the following paragraphs will show.
Consent Must Be Given Voluntarily and May Be Revoked at Any Time
For a waiver of Fourth Amendment rights by consent to be valid, the consent must be freely and voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973) (noting that consent may not be “coerced by threats or force, or granted only in submission to a claim of lawful authority”).
In the context of implied consent laws, determining whether consent was truly voluntary can be difficult, often requiring an intensive examination of the facts of each case. The appropriate legal analysis examines the totality of the circumstances surrounding the purported consent, with special emphasis on several factors, including “the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.” Id. at 226 (internal citations omitted).
In applying the factors above, some state courts have enervated the underlying assumption crucial to an effective implied consent scheme—i.e., that drivers’ consent to a warrantless BAC is presumed to be voluntary by virtue of their public road usage. In the context of blood draws, the Supreme Court of Delaware, in 2015, explicitly rejected the trial court’s reasoning that “[d]efendant’s statutory implied consent exempted the blood draw from the warrant requirement.” Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015) (internal quotations omitted). On the contrary, the Delaware court held, “Due to the invasive nature of [a blood draw], a Fourth Amendment totality of the circumstances analysis must be performed when the search is not based upon a warrant or exigent circumstances in order to determine whether a defendant voluntarily consented to the blood draw.” Id. The court drew on the US Supreme Court’s holding in Missouri v. McNeely that the reasonableness of a warrantless blood test “must be determined case by case based on the totality of the circumstances.” Id. at 1066 (citing Missouri v. McNeely, 569 U.S. 141, 156 (2013)).
This same reasoning has been adopted in other states (see, e.g., State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014)) and is especially salient as it pertains to so-called forced blood draw statutes. These statutes greatly expand the reach of implied consent laws by permitting law enforcement to use force to seize the blood of a person suspected of driving under the influence. As some states have determined, this broad expansion of the implied consent scheme is constitutionally suspect.
Two cases out of the American southwest are good examples. In Nevada, in 2014, the Nevada Supreme Court struck down a statute granting law enforcement the authority to “direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested.” Byars v. State, 336 P.3d 939, 945–46 (Nev. 2014). The court’s rationale emphasized the revocable nature of consent as a fundamental right guaranteed by the Fourth Amendment. See id. at 945. “We have found no jurisdiction,” said the Nevada court, “that has upheld an implied consent statute that allows an officer to use force to obtain a blood sample upon the driver’s refusal to submit to a test.” Id. at 946.
The second case, mentioned previously, concerned a similar law in Texas. In State v. Villarreal, the Texas Court of Criminal Appeals considered a statute that obligated law enforcement to obtain a sample of a person’s blood—by force, if necessary—if certain aggravating circumstances were present (e.g., if the person was involved in a fatal motor vehicle accident the officer reasonably believed was caused by the person’s intoxication, if a child was a passenger in the motor vehicle, or if the person had previous DWI convictions). See generally State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014). The Texas court’s reasoning echoed the Nevada Supreme Court’s earlier reasoning in Byars, with the Texas court even citing the Nevada decision as an example of how other courts had “recently considered challenges to statutes that aim to establish irrevocable implied consent and have concluded that those statutes, when used to draw a suspect’s blood without a warrant and over his objection, do not establish valid legal consent within the bounds of the Fourth Amendment.” Villarreal, 475 S.W.3d at 803. In its own case, the court held:
To the extent the State suggests that the implied-consent and mandatory-blood-draw provisions in the Transportation Code categorically extinguish a DWI suspect’s right to withdraw consent when some aggravating circumstance is present, that suggestion cannot be squared with the requirement that, to be valid for Fourth Amendment purposes, consent must be freely and voluntarily given based on the totality of the circumstances, and must not have been revoked or withdrawn at the time of the search.
Id. at 800.
States do have the option of furnishing legislative guidance in advance for situations where consent may be unclear and impossible to clarify. Wisconsin’s implied consent scheme, for example, provides that “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent. . . .” Wis. Stat. § 343.305(3)(b). This particular statute has already survived scrutiny by the US Supreme Court. See Mitchell v. Wisconsin, No. 18-6210, slip op. at 16–17 (U.S. June 27, 2019) (holding that, even absent consent, warrantless blood draws of unconscious drivers do not violate the Fourth Amendment because “[i]n the emergency scenarios created by unconscious drivers, forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs”).
Using a Refusal to Submit to a BAC Test as Evidence at Trial
There is some disagreement among jurisdictions as to whether the government may use a suspect’s refusal to submit to a BAC test as inculpatory evidence at a subsequent criminal trial without violating the Fifth Amendment to the US Constitution and related amendments to state constitutions.
At the federal level, introducing evidence of a defendant’s test refusal at trial does not violate the Fifth Amendment. When confronted with a South Dakota law that permitted, among other things, a defendant’s refusal “to be used against the defendant at trial,” the US Supreme Court upheld the provision, reasoning the Fifth Amendment—which provides that no person shall be “compelled” to self-incriminate—only prohibits the exertion of “physical or moral compulsion” as a means to elucidate self-incriminating evidence or testimony. South Dakota v. Neville, 459 U.S. 553, 562–63 (1983) (citing Fisher v. United States, 425 U.S. 391, 397 (1976). More specifically, the Court held the Fifth Amendment primarily contemplates barring the use of testimony “obtained when the proffered alternative was to submit to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer ‘confession.’” Id. at 563 (citing Schmerber v. California, 384 U.S. 757, 765 (1966)). The Court acknowledged that under their rationale, the defendant would no doubt be forced to make a difficult decision, but dismissed such concerns, noting, “the criminal process often requires suspects and defendants to make difficult choices.” Id. at 564.
Nearly two decades before the Court’s decision in Neville, in 1966, the California Supreme Court ruled similarly on the same question, but for different reasons, saying, “The privilege against self-incrimination applies to evidence of ‘communications or testimony’ of the accused, but not to ‘real or physical’ evidence derived from him.” People v. Ellis, 65 Cal. 2d 529, 533 (1966) (citing Schmerber, 384 U.S. at 764). In Ellis, San Mateo Police attempted to obtain a voice sample of a man suspected of assailing a woman at a bus stop. Id. at 532. The man refused, and his refusal was introduced as evidence at the subsequent criminal trial. Id. at 533. In distinguishing “communications or testimony” from “real or physical” evidence, the court observed how in a voice recognition test, the speaker is requested “not to communicate ideas or knowledge of facts, but to engage in the physiological processes necessary to produce a series of articulated sounds, the verbal meanings of which are unimportant.” Id. at 533–34. The same court (indeed, the same judge) almost immediately applied a similar distinction to BAC tests in People v. Sudduth, calling Ellis “fully applicable to the question whether evidence of and comment on defendant’s refusal to submit to a breathalyzer test is constitutionally admissible. Suspects have no constitutional right to refuse a test designed to produce physical evidence in the form of a breath sample.” People v. Sudduth, 65 Cal. 2d 543, 546 (1966) (internal citations omitted).
Standing in sharp contrast to the US Supreme Court’s decision in Neville and the California Supreme Court’s decisions in Ellis and Sudduth, in 2019, the Georgia Supreme Court held that defendant’s refusal to take a breath test could not be used against the defendant at a criminal trial under Article I, Section I, Paragraph XVI of the Georgia Constitution. See Elliott v. State, 824 S.E.2d 265, 267 (Ga. 2019). Following a detailed account of the history and evolution of the right against compelled self-incrimination, the Georgia court reasoned that although the US Constitution and state constitutions may vary textually in how they describe the right against compelled self-incrimination, “these various phrasings have a common conception, in respect to the form of the protected disclosure.” Id. at 278 (citing John Henry Wigmore, 4 Treatise on the System of Evidence in Trials at Common Law § 2263 (1905)). It was “‘immaterial that the witness is protected by one Constitution from ‘testifying,’ or by another from ‘furnishing evidence,’ or by another from ‘giving evidence,’ or by still another from ‘being a witness.’ These various phrasings have a common conception, in respect to the form of the protected disclosure.’” Id. Thus, the Georgia court reasoned, because the Georgia Constitution had always reflected a view that “the right against compelled self-incrimination protected the accused from being compelled to provide, do, or say anything that might tend to incriminate him,” it was unlawful for a defendant’s refusal to provide a breath sample for a BAC test to be used against the defendant at trial. Id. In rejecting Neville (and by extension, the reasoning of the California court in Ellis and Sudduth), the Georgia court said, “our decision does not turn on the meaning of the word ‘coerced’ as a textual matter, nor on ‘the values behind the Fifth Amendment,’ but, rather, on the meaning of the common-law right against self-incrimination when it was first enshrined.” Id. at 294–95 (citing South Dakota v. Neville, 459 U.S. 553, 563 (1983).
When Implied Consent Laws Are Facially Unconstitutional
On occasion, courts have struck down implied consent laws as facially unconstitutional. Take, for example, a case out of Kansas involving a question over the state’s implied consent statute, fleshed out over the course of two decisions from the Kansas Supreme Court: State v. Ryce, 368 P.3d 342 (Kan. 2016) [hereinafter Ryce I], and State v. Ryce, 396 P.3d 711 (Kan. 2017) [hereinafter Ryce II].
Prior to being rewritten in July 2019, Kansas’s implied consent law, Kansas Statutes Annotated § 8-1001 et seq. (2016 Supp.), said, “Any person who operates or attempts to operate a vehicle within this state may be requested, subject to the provisions of this article, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.” A first-time violation of the implied consent law—specifically, “refusing to submit to or complete a test or tests deemed consented to under K.S.A. 2016 Supp. 8-1001(a)”—carried steep penalties, including a term of imprisonment of up to a year and a fine up to $1,750. Kan. Stat. Ann. § 8-1025(a) (2016 Supp.).
Such was the statutory scheme in effect on December 9, 2012, when a Kansas motorist named David Lee Ryce was pulled over for “driving a car down a street in reverse” on the wrong side of the road. See Ryce I, 368 P.3d at 347. Ryce was arrested and transported to the county jail, where he refused to submit to a breath test and was subsequently charged with the felony of refusing to submit to testing for the presence of alcohol or drugs under Kan. Stat. Ann. § 8-1025(a) (2016 Supp.). Ryce I, 368 P.3d at 347.
In the end, Ryce’s refusal was fortuitous. He successfully challenged Kansas’s implied consent statute in district court on constitutional grounds, arguing it punished a person for exercising his right to withdraw consent to a consent-based search. Id. at 348. On appeal, the Kansas Supreme Court affirmed the decision of the district court, calling the law “facially unconstitutional.” Id. at 380. The court reasoned that because Kansas’s implied consent law “criminally punish[es] a driver’s withdrawal of consent,” it necessarily “infringes on fundamental rights arising under the Fourth Amendment” and therefore did not satisfy the requirements of strict scrutiny. Id. at 347.
Following the announcement of the Kansas Supreme Court’s decision, the government filed a motion to stay the court’s mandate until the US Supreme Court decided Birchfield v. North Dakota, which was granted. While Birchfield’s outcome narrowed the Kansas court’s rationale (recall Birchfield established a categorical search-incident-arrest exception to the warrant requirement), it did not materially alter the outcome in Ryce I—Kan. Stat. Ann. § 8-1025 (2016 Supp.) remained “facially unconstitutional.” Ryce II, 396 P.3d 711, 712 (Kan. 2017).
The reason for this is because the central question in Ryce I and Ryce II was one of statutory interpretation, not, as the government believed, whether the warrantless test could have been conducted even in the absence of consent. Of paramount concern to the Kansas court was the statute’s use of the phrase “deemed consented to”; some would suggest, as the government did in Ryce II, that the Kansas court could have found in the government’s favor simply by applying the newly established and categorical search-incident-to-arrest warrant exception established in Birchfield. It did not matter, the argument would go, that Ryce had withdrawn consent; the officer, by conducting a lawful arrest and acting in good faith, could have performed the warrantless search all the same. And in many cases, that argument would have been dispositive. Courts have, after all, consistently held that “[c]onsent in the constitutional sense is only required where the defendant has a legal right to refuse.” Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986).
But in Ryce I and Ryce II, the law was struck down as facially unconstitutional precisely because it criminalized the act of withdrawing consent only from searches “deemed consented to”—not, as the government argued, searches performed pursuant to the general “authority of a law enforcement officer to issue a lawful order to submit to a search,” which would encompass searches conducted under exigent circumstances or incidentally to a lawful arrest. Ryce II, 396 P.3d at 718. Indeed, a law criminalizing the act of interfering with warrantless searches other than consent-based searches already existed in Kansas’s general obstruction statute, Kan. Stat. Ann. § 21-5904(a)(3) (2016 Supp.). Ryce II, 396 P.3d at 714 (citing Ryce I, 368 P.3d at 355). In short, the law was in tension with itself.
Conclusion
Implied consent laws are more complicated than they seem and are frequently undergoing changes—changes the nature and degree of which vary from one jurisdiction to another. For this reason, practitioners and other legal professionals should stay abreast of developments in their jurisdiction’s implied consent laws and be familiar with the common issues to which they give rise. Some of these issues have been highlighted here, but more are sure to emerge.
