Constitutional Right to Privacy
Like so many DWI lawyers, I have a difficult time appreciating how “implied consent” laws comport with our fundamental rights under the Fourth Amendment. After all, police are not permitted to randomly stop individuals and search them. But somehow, for the “privilege” of driving, the courts have turned a blind eye and created an exception for DUI cases. I tell clients frequently that they may have more rights if found to have crystal meth on their person than if they dare have a drink with dinner and get on the road to go home. In fact, many individuals sincerely believe it is against the law to drink and then drive. This erroneous conclusion is derived from the highway bill boards that proclaim “Don’t drink and drive.” Of course, it is not illegal to drink and then drive. It is against the law to drink while driving (open container). But you can still, in theory, have a beer at the game or a drink with your meal and then get behind the wheel – so long as you are not impaired. The law allows for a margin of error until your blood alcohol content reaches 0.08. Of course, even in cases where the BAC level is below 0.08, the State can still and often do attempt to prosecute you if they can prove your “mental and physical faculties” were “impaired.” It is a strange fact that many citizens who are quick to condemn DUI arrestees are not aware. In jury trials, such revelations are received with puzzled looks. So let’s examine just how we got here.
Driving is a privilege, not a right
Courts have held that a driver has a property interest in their license to operate a motor vehicle and must be afforded due process. Courts have also uniformly recognized that individuals have a legitimate expectation of privacy, protected by the Fourth Amendment, in their own blood and the physiological data it contains. As a result, the withdrawal and analysis of a person’s blood has to satisfy the Fourth Amendment’s reasonableness requirement. There is still an ongoing debate, however, as to whether the “choice” between giving consent under the threat of punishment (license suspension) for refusing acts to negate the validity of the “consent” by placing a person in an unconstitutional dilemma. So how does the State get away with threatening punishment even before a person is convicted of the DUI offense. They set up a two prong system – criminal (DWI arrest) and civil (DMV licensing). In the criminal case, you have certain “rights.” In the DMV or civil context, you have certain “privileges.” In some cases, the criminal case can be won or even dismissed, but the DMV ramifications still survive.
The United States Supreme Court in the case South Dakota v. Neville, 459 U.S. 553 (1983), held that the admission into evidence of a defendant’s refusal to submit to blood-alcohol testing did not offend the Fifth Amendment right against self-incrimination. Neville basically reaffirmed the Supreme Court’s earlier determination in Schmerber v. California, 384 U.S. 757 (1966). However, in light of Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013), Neville cannot be applied to resolve the still open question of whether implied consent testing is reasonable under the Fourth Amendment. The Supreme Court in McNeely clarified that Schmerber did not establish a per se (all inclusive) exception to the warrant requirement in impaired driving cases. Rather, courts must consider the totality of circumstances in any case to evaluate whether a nonconsensual warrantless blood test of a DUI suspect is reasonable under the Fourth Amendment. And, Neville also did not address the fundamental issue of whether a suspect’s submission to testing under threat of license suspension was “free and voluntary.” It may well be the case that implied consent testing can somehow be reconciled with a traditional Fourth Amendment analysis. Perhaps it will be held that implied consent searches are some new kind of “special needs” searches. Maybe breath tests will be deemed justified under a general exigency exception even if blood tests are not. It is difficult to follow the current rationale being used here. I have found that when something is complicated, it is by design to achieve a desire outcome. Maybe courts feel the end justifies the means in DUI cases. It is still an open question that continues to be be debated.
As this legal debate is as yet unresolved, we have documented the most common arguments made. First, we offer the State’s position (and seemingly held by a considerable percentage of the driving public):
If courts have ruled that “implied consent” laws are legitimate, you are consenting to certain rules, regulations and conditions by using roadways. Accordingly, is it reasonable, in the interest of public safety, to compel a driver to submit to a alcohol test (blood or breath)? Many people would say yes. However, would it also be reasonable for the State to assert that “implied consent” also means you can be randomly stopped and searched for simply operating a vehicle on public roads? Most individuals would say no.
And for those who still value fundamental rights:
There is an inherent conflict between Fourth Amendment rights and “implied consent” statutes. The argument that driving is a “privilege,” and therefore, enables implied consent laws in fundamentally flawed (pun intended). We do not live in a village. Individuals are required to be mobile in today’s society to get to work or school. That is why it has been held that drivers have a property interest in their license and must be afforded due process. If due process is required, how can anything less than a “reasonable” compliance with the 4th Amendment be allowed to stand? With McNeely, “implied consent” cannot continue to be used to justify warrantless searches or free and voluntary consent. Under the Fourth Amendment as well as “implied consent” laws, police have to get a warrant to test blood under NC DWI law. It is difficult to argue a distinction then between blood and breath testing. A “refusal” of breath testing somehow triggers a legal basis to require a warrant for a different body search. Hopefully, the courts will eventually solve the riddle created by the circular logic of implied consent in conjunction with the Fourth Amendment. If not, we may have opened a portal to additional legal fallacies in the interest of “public safety.” One has to be very careful here. Our most basic rights are at the mercy of the lowest common denominator of what we are willing to allow. I hope to practice long enough to see the legal pendulum go back towards the center.