Implied Consent And The Fourth Amendment

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When a driver is arrested for suspected drunk driving the arresting officer will invariably ask the suspect to submit to a breath or blood test to determine the driver’s bodily alcohol concentration or BAC. The same is true in the case of suspected drugged driving where a blood test is sought to determine the presence of any controlled or intoxicating substance.

In the course of being asked to submit to the test, the driver is most typically read an “advice of rights” that outlines the requirements of the applicable implied consent law. In Michigan, the advice of rights or chemical test rights are set forth in MCL 257.625a(6) and usually read to the suspect from Form DI-177.

The problem is that the recitation of chemical test rights from Form DI-177 is incomplete and misleading.

It is misleading because it asserts unequivocally that a refusal to take the requested test will automatically result in a suspension of driving privileges and the imposition of 6 points on the suspect’s driving record. That is simply untrue.

It may result in those sanctions if the suspect refuses and fails to request a hearing within 14 days or timely requests a hearing but loses on the merits. But the licensing sanctions are certainly not automatic. See MCL 257.625f. This is the principle distinction between the chemical test advisement given in Michigan and other states. The Form DI-177, unlike the advisements of other states’ implied consent laws does not “accurately inform the driver of the consequences of a refusal.”

This distinction is gaining greater importance as the appellate courts in other states render opinions which refine the law as it relates to the consent exception to the 4th Amendment warrant requirement in breath and blood test cases. Michigan appellate courts have yet to render a definitive opinion on this issue following the case of Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

In McNeely, a driver was stopped for various traffic infractions. He refused to consent to an evidential blood draw for the purposes of measuring his blood alcohol content. Officers had the test administered without the driver’s consent and without first obtaining a warrant.

The U.S. Supreme Court framed the issue as “whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely v. Missouri, 133 S. Ct. at 1556 (emphasis supplied). The Court answered this question in the negative and concluded that exigency in this context must be determined case by case based on the totality of the circumstances.

Because it had been found as a factual matter that the motorist in McNeely did not consent to the blood draw, the U.S. Supreme Court’s decision in McNeely focused solely on the exigency exception to the warrant requirement.

Although a plurality of the Court acknowledged that implied consent statutes are among the “broad range of legal tools [States have] to enforce their drunk-driving laws and to secure [blood alcohol content] evidence without undertaking warrantless nonconsensual blood draws,” 133 S. Ct. at 1566, the Court in McNeely did not directly decide the separate question whether the consent exception to the Fourth Amendment warrant requirement was satisfied solely by the operation of Missouri’s implied consent statute.

Various courts have noted the importance of distinguishing between “implied consent” and “actual consent.” For example, the Court of Appeals of Wisconsin stated:

“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. [T]he 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” . . . .

State v. Padley, 354 Wis. 2d 545, 564, 849 N.W.2d 867, 876 (Wis. App. 2014). In connection with actual consent, the Padley court continued:

[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions [for refusal].

345 Wis. 2d at 571, 849 N.W.2d at 879 (emphasis in original) That is, ordinarily, the point at which the suspect chooses not to refuse is the point in time at which he or she actually consents to a blood draw. And the Supreme Court of Georgia in Williams v. State, supra, noted that the determination of actual consent to the procuring and testing of a motorist’s blood requires the determination of the voluntariness of the consent under the totality of the circumstances. Id.

The Supreme Court of Georgia observed that post-McNeely, “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.” Williams v. State,296 Ga. at 822, 771 S.E.2d at 377. Other courts have come to the same conclusion. For example, in Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015), the Supreme Court of Delaware concluded that “the trial court erred when it concluded that ‘Defendant’s statutory implied consent exempted the blood draw from the warrant requirement’ of the Fourth Amendment.” The court in Flonnory remanded the cause to the trial court to “conduct a proper Fourth Amendment analysis” which would entail “considering the totality of the circumstances.” 109 A.3d at 1066. The court in Flonnory noted that in McNeely the U.S. Supreme Court had acknowledged that implied consent laws were a legal tool to enforce drunk driving laws but the Court had still explained that “‘Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.’” State v. Flonnory, 109 A.3d at 1066. See, also, Weems v. State, 434 S.W.3d 655 (Tex. App. 2014) (implied consent and mandatory blood draw statutory scheme is not, per se, exception to Fourth Amendment warrant requirement); Aviles v. State, 443 S.W.3d 291 (Tex. App. 2014) (mandatory blood draw authorized by statute was not categorical per se exception to warrant requirement and consideration of totality of circumstances was required under Fourth Amendment).

The Supreme Court of Nebraska recently agreed with the rationale of those states: “we conclude that a court may not rely solely on the existence of an implied consent statute to conclude that consent to a blood test was given for Fourth Amendment purposes and that the determination of whether consent was voluntarily given requires a court to consider the totality of the circumstances.” State v Modlin, 291 Neb. 660 (2015) at 673. The Nebraska Supreme Court went on to note that in considering the totality of the circumstance, the existence of an implied consent statute is but one circumstance a court may and should consider to determine voluntariness of consent to an evidential chemical test.

The point is that given the nature of Michigan’s implied consent law anyone who consents to a breath or blood test after being read the chemical test rights from Form DI-177 has a legitimate defense to the admissibility of the test result at trial. The adequacy of the form is extremely vulnerable to challenge on the basis of lack of informed consent in light of the 4th Amendment considerations addressed by many of the appellate courts in other states.

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