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BAC test evidence and DUI

In Birchfield v. North Dakota, the Supreme Court held that breath tests, but not blood tests, may be administered without a warrant as a search incident to lawful arrest for drunk driving.  The Court also held that motorists may not be criminally punished for refusing to submit to a blood test on the basis of legally implied consent.  In Missouri v. McNeely, a plurality of the Court held that the natural dissipation of alcohol in a motorist's blood stream alone does not create a per se exigency that would justify a non-consensual blood draw without a warrant.

Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement.  We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions.  We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive.

Last week, the high Court's jurisprudence tied the hands of law enforcement and hindered prosecutors from obtaining probative evidence of blood alcohol concentration levels in at least two incidences.

In Iowa, reality TV star Chris Soules slammed his truck into the back of a tractor being driven along a quiet country road by 66-year old Kenneth Mosher killing him.  Soules allegedly called 9-1-1, but left on foot before law enforcement arrived.  Soules was picked up by an unknown driver and taken to his Iowa residence.  Soules' truck had rolled into a ditch and law enforcement found empty and partially consumed alcohol containers in and around the deserted truck.  Prosecutors now allege that he was seen purchasing alcohol shortly before the accident.  Officers tracked down Soules, but he refused to come out until a warrant had been obtained.  Several hours later, a warrant was obtained and Soules was arrested and booked into jail around 1am.  A blood test was apparently taken after his arrest.  Soules was charged with leaving the scene of a deadly crash, which is a felony in Iowa.  His attorney recently filed a motion to dismiss the charges.

No breath test was taken because he left the scene of the accident.  A blood test was taken, but it was "hours" after the accident because it took that long for law enforcement to obtain a warrant.  The results of the BAC have not been made public, but it is probably safe to say that the natural dissipation of alcohol in his blood stream over several hours would not provide evidence of intoxication.  Soules has a long history of driving and alcohol violations and was convicted of a DUI in 2006.

Last week in California, a 30-year old man slammed his truck into a traffic light at a major intersection in downtown Winters. He was reportedly driving at speeds in excess of 70mph.  His female passenger sustained life-threatening injuries and remains in the ICU.  When law enforcement arrived on scene, "the driver was outside the vehicle and appeared to be intoxicated."  He was taken to the closest hospital for treatment of minor injuries. The driver refused to take a blood test.  After he was treated and released, law enforcement obtained a search warrant, a blood sample was taken, and he was arrested and booked for felony DUI.

I agree that privacy interests are of the upmost importance and blood tests are invasive.  However, the Fourth Amendment protects against unreasonable searches and seizures.

 "It is reasonable for a state to want to encourage chemical testing of drivers lawfully arrested for DUI.  It is reasonable for a state to want to prevent drunk drivers from killing or injuring innocent people.  It is reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  It is unreasonable to permit a lawfully arrested drunk driver to go unpunished for a crime he or she committed due to willful lack of cooperation with law enforcement." 
The timing to determine the BAC of an arrestee in a DUI situation is critical and these two cases are simply two among hundreds that law enforcement confront daily around the United States.


Rather than relying upon implied consent laws, can't states require that all persons applying for a license execute an express consent to submit to a blood draw upon request of a law enforcement officer who has reasonable suspicion that they were DUI -- with a refusal to submit being admissible as evidence of guilt at any subsequent administrative or criminal proceeding?

Do any states require express consent in writing before a person is given the privilege of driving?

Would any such express consent (i.e., advance waiver of Fourth Amendment protection) satisfy the "consent" exception?

Many states include an automatic license suspension upon refusal of a blood test. That's not a criminal penalty, and it at least keeps them off the road for a while.


That's not the issue that I am inquiring about.

Rather, the issue of whether advance express consent could justify the warrantless taking of blood and, thus, criminal penalties for refusing to submit to a blood draw was not decided by Birchfield. Although it was touched upon in oral argument. (See pages 8-13 of oral argument transcript.)

The California Supreme Court might address this issue in the near future. (See People v. Arredondo, S233582.)

I'm pretty sure requiring advance consent would run afoul of the unconstitutional conditions doctrine. That doctrine prevents the government from granting or denying a particular privilege on the condition of relinquishing a constitutional right. (See our Beylund brief pgs 18-25)
Even it it were permitted, what about unlicensed drivers? Or out of state drivers who have no similar advance consent requirement in their state? State implied consent laws apply to all drivers who use the public roadways - doesn't matter if you have a license or not, or if you're just driving through.

Reading Bichfield together with the Court's prior opinions on implied consent statutes, I believe that the Court is clearly of the opinion that statues that imply consent to BAC testing (including warrantless blood draws) from the act of driving on a state's roadways are reasonable under the 4A.

And since these statutes imply consent from the act of driving, I don't believe that requiring advance express consent (to BAC testing) as a condition of driving on a state's roadways would violate the unconstitutional conditions doctrine.

If implied consent statutes don't violate that doctrine, how can requiring express consent do so? If choice is at the heart of "voluntary" (i.e., constitutional) consent, isn't express consent much more likely to be found to be voluntary, than implying consent (from the act of driving) where the driver may, in fact, not even be aware of what he/she has consented to by driving on the state's roads?

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