The Fiction of Implied Consent

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THE FICTION OF IMPLIED CONSENT

Michigan, like all states, has an implied consent law. However, most legal experts in the field of drunk and drugged driving have recognized and argued that implied consent is not the same as voluntary consent under the Fourth Amendment.

While this argument has gained little traction in Michigan, recent decisions rendered by appellate courts of other states have revitalized the issue and reopened the debate. These decisions may mark a shift in the legal landscape and provide persuasive authority in the appropriate Michigan DUI case.

Michigan implied consent laws are premised on the notion that driving is a privilege – not a right.

The rationale is that when the state issues a driver’s license and extends the privilege of driving to an individual, the state may rightfully expect something in return. That “something in return” includes the advance consent (implied consent) by the driver to submit to an evidential chemical test at the request of a police officer when the driver is stopped for suspected Michigan OWI.

But, in reality, implied consent is a legal fiction. This is because when confronted with the decision to consent to the chemical tests, one must choose between “consenting” or facing a license suspension for one year and six points added to his or her driving recording. Put another way – implied consent is really nothing more than coerced consent; free of the hallmarks of voluntariness contemplated by the Fourth Amendment. This dichotomy was recently addressed by the Georgia Supreme Court in the case of Williams v Georgia.

In Williams the Court noted several states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue.

But the Court went on to observe that the cases seem to indicate 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. See, e.g., People v. Harris Cal. Rptr.3d. , 2015 WL 708606 (Cal. App. 4 Dist., 2015); Weems v. State, 4334 S.W.3d 655 (Tex. App., 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis.App., 2014); State v. Moore, 354 Or. 493 (318 P3d 1133)(Or., 2013); State v. Brooks, 838 N.W.2d 563 (Minn.,2013); State v. Declerck, 2014 Kan. App. LEXIS 5.

The Williams court pointed out the rationale of the Wisconsin Court of Appeals in Padley,

Implied consent” is not an intuitive or plainly descriptive term with respect to how the implied consent law works. . . .[it may be] a source of confusion . . . the term “implied consent” [may be] used inappropriately to refer to the consent a driver gives to a blood draw at the time a law enforcement officer requires that driver to decide whether to give consent. However, actual consent to a blood draw is not “implied consent,” but rather a possible result of requiring the driver to choose whether to consent under the implied consent law.

State v. Padly at 564.

In considering the breath test administered to any driver facing a Michigan First Offense DUI or a repeat offender, the Court must be compelled to address whether the driver gave actual consent to the procuring and testing of his or her breath, which requires the determination of the voluntariness of the consent under the totality of the circumstances. This argument should be raised in every Michigan implied consent case.

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