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Are Implied Consent Laws Constitutional?

Are Minnesota Implied Consent Laws Constitutional?

By Marvin Pirila


Last year, a couple of local residents were charged with violating the implied consent laws of Minnesota, a separate citation from DUI/DWI.  The consequences were severe, continuing the ongoing debate, are implied consent laws constitutional?


Definition of Implied Consent


As defined by Wikipedia, “Implied consent is consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction) [Underlining added].  The term is most commonly encountered in the context of United States drunk driving laws.” Wikipedia addresses it in the context of driving, “… a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.


Source:  Implied Consent


Minnesota Clings to Implied Consent Laws


In Minnesota, “It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2008).  The law renders the refusal crime as more serious than taking and failing the test. Under the Statute, “action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.  Minn. Stat. § 169A.51, subd. 3 (emphasis added).


No Evidence of Drinking and Driving needed


The state recently took implied consent to a whole new level when an individual, having driven earlier in the day, far removed from his vehicle in both terms of distance and time, was arrested on the allegation of possible driving while under the influence.  The police acted on mere hearsay, without personally observing any driving behavior.  There is no evidence to suggest they even checked to see if the engine was warm.  The dash cam video was never used.  The actions, facts, and circumstances would not lead to a reasonable inference of implied consent.  Moreover, a valid search warrant could have been sought, but wasn’t.  The state is choosing to use implied consent in place of a valid search warrant, choosing convenience over an individual’s Fourth and Fifth Amendment rights.


Not understanding the consequences of refusing an implied consent test, the individual refused, and considering he was in the privacy of his own home, who wouldn’t.


According to implied consent laws, anyone who drives on public roads or highways has, by that action, consented to blood, breath, or urine tests. Once stopped or arrested for suspicion of driving while impaired, a person must submit to a test or face revocation or suspension of his or her driver's license.  But is it enough to just have driven a vehicle, when all that police can prove is that you were drinking later, far removed from a vehicle in the privacy of your own home?  What’s to stop police from arresting you sometime later after witnessing you drive and pick up some off-sale earlier that day?  Should you have to refrain from drinking in your own residence any day that you have driven?  This case shows that a person can be subject to arrest and charges by mere hearsay and conjecture.  What stops someone who doesn’t like you from calling in and saying you have been drinking the same day as you were driving.  It’s not illegal unless you’re over the legal limit and driving, not driving and then later, drinking (absent further driving).  The line is gray and a very real threat to your freedom.


Minnesota’s Implied Consent Charge is Separate from other Charges


Implied consent really means you will be treated like a convicted criminal – guilty until proven innocent.  It means, if you refuse a Breathalyzer, you are acting criminally by not forfeiting your right against self-incrimination (5th Amendment) or protected against illegal searches (without a search warrant – a violation of the 4th Amendment).


“Courts generally hold that a revocation or suspension of a license caused by a driver's refusal to test for drugs or alcohol is separate and distinct from a prosecution for driving while intoxicated. [Emphasis added]  Therefore, in most states, it makes no difference whether a driver pleads guilty to, is convicted of, or is acquitted of the crime: refusing to take a test for chemical impairment may result in a revoked or suspended license, and this punishment must be paid despite a subsequent acquittal of driving while intoxicated or in addition to any punishment that comes as a result of a conviction.”  Source:  The problem, in this case, is that that is no proof that driving while under the influence ever occurred.  The inference needed for an implied consent charge never existed.


In Minnesota, a suspected drunken driver can be charged with refusing a breath or blood test if arresting officers believe there’s enough evidence to get a search warrant to require the test — even if they don’t obtain the warrant.   In this case, they had evidence of drinking but none associated with driving.  There is absolutely no evidence of any driving while intoxicated and it’s hard to imagine a search warrant would have had any chance of approval.


Law officers must have reasonable grounds to believe that the driver is intoxicated before requesting a blood, urine, or breath test.  Absent any evidence of driving while under the influence, there wasn’t the needed weight to justify “reasonable grounds.”


This case casts serious concerns into the constitutionality of the broad interpretation of implied consent laws.  As it is currently being interpreted, if you have been seen driving and then later drinking, you may be charged with drinking and driving.  They take the loosely interpreted definition to force you to take a Breathalyzer, and possibly go to jail –following the same path of destruction this gentleman did.  When you can’t retreat to the security of your own home and do your own thing, what boundaries exist for our police?  There will be no sanctity within our homes as law officers will be unrestrained to conduct sobriety tests anywhere they feel, while only having to link you to driving the same day.


There seem to be no case to support this interpretation and yet it’s being pursued by St. Louis County sheriffs and the county attorney’s office.  Most of the time, the defending attorney pressures their client to take a plea, suggesting that taking it to trial is too risky.  When they come into the privacy of your home, jail you, cost you your job, deny your unemployment, and subject you to Whiskey plates, along with inevitably high car insurance costs, what more is there to lose?  There are also the many sleepless nights, financial and marital strain, and the degradation of health and well-being.


The true tragedy is that they can put anyone of us through this, drag it out a year, and then dismiss it.  You are left with the attorney fees, no license, and no job -- they are out nothing.   And if you refused the breath test, according to implied consent laws, you will still have your licensed revoked.  The damage is all yours for trying to do the right thing in the first place, choosing to drink at home rather than on the road.


Unless there are consequences for the perpetrator causing the harm (St. Louis County and Minnesota) what will cause them to cease their arguably constitutional violations.  They will not have to reimburse all legal fees and immediately reinstate your license.  The fact that the charges are defective is immaterial to the state as you are deemed guilty without the benefit of facts or final verdict. 


Minnesota Legislators and Officials Violate Constitutional Laws with Implied Consent


In 2013, in Missouri v. McNeely, the U.S. Supreme Court wrote that the compelled physical intrusion beneath [the driver’s] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation [is] an invasion of bodily integrity [that] implicates an individual’s “most personal and deep-rooted expectations of privacy."  Yet, in Minnesota, if you hold a driver’s license, they state that acknowledges consent.


Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest.  Missouri v. McNeely, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).


As prominent Minnesota attorney, Joe Friedberg, was quoted in the Star Tribune as saying, “The appellate courts have shown little or no respect for the McNeely holding...they’ve adopted the philosophy that the case only applies in Missouri and to McNeely.”  They’ve taken that stance despite the fact the McNeely case was ruled on by the U.S. Supreme Court.


The Minnesota legislature has decided the Implied Consent Law is a condition of having driving privileges.  All drivers arrested for DWI impliedly “consent” to submit to a warrantless search (chemical test of blood, breath, or urine). If a driver refuses to take a test, or if the driver takes and "fails" the test (.08 or higher), the State takes away the driver's license.


“Consent,” by definition, is permission freely and voluntarily given. Permission can always be withdrawn. If permission can’t be withdrawn (without incurring criminal penalty), it’s not voluntary, and therefore, it's not consent.  Implied consent is simple coercion and does not constitute true, voluntary consent.


Minnesota Legislators have Unilaterally decided against the Protections of the Fourth Amendment


Minnesota judges once embraced the rights afforded citizens under the Fourth Amendment.  The ruling in Prideaux v. Minnesota (1976) stated, “The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense [,]”  "[A]n officer has a right to ask to search and an individual has a right to say no.” State v. George, 1997.


Breath tests are searches subject to the warrant requirement (Skinner, Kyllo).  Likewise, search warrants can be obtained via telephone in a matter of minutes (Rule 36.01). As the warrant takes such little time, and is a matter of constitutional law, police are opting for convenience over substance, only afforded by Implied Consent Laws.  The Fourth Amendment defends against illegal searches, now deemed legal in Minnesota.


There are only two justifications for the search incident to lawful arrest exception: protecting police and the public by removing weapons, and preventing the destruction of tangible, destructible evidence.   One of these two justifications must be present for the search incident to arrest exception to apply. Police perform a search incident to arrest, to make sure a suspect has no weapons or destructible evidence on his or her person, when they take a suspect into custody.  Legally, a search incident to arrest must occur contemporaneously with the arrest. (Gant)


The general rule is that police must observe a DWI suspect for a minimum of 15 minutes after the arrest before conducting a breath test.  A suspect’s breath presents no danger to the police, and there is nothing a suspect can do to destroy evidence of alcohol in the breath.


The “exigent circumstances” doctrine recognizes that if crucial evidence will likely be destroyed in the time it would take for law enforcement to obtain a warrant, police have the right to go ahead and execute their search without one (after the fact, the police will have to prove that they had probable cause to perform the search). Generally, the courts are expected to review these types of warrantless searches under a “totality of the circumstances,” weighing the likelihood that the evidence would have been destroyed against the timeframe it would have taken law enforcement to obtain a warrant. This is the type of careful balancing that courts are good at, and the type of judicial oversight that has been used since at least 1966 and the SCOTUS case of Schmerber v. California.


Officials that have failed their Judicial or Legislative Responsibilities


Chief Judge William J. Riley, 8th Circuit, stated that the Minnesota law that forces DWI suspects to submit to a warrantless blood draw does not violate the Fourth Amendment. Wall v. Stanek, 2015 WL 4430495.  Chief Judge Riley "confirmed" that society’s judgment [is] that blood tests do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.  This, of course, was not the ruling of the Supreme Court in Missouri v. McNeely (2013).


Attorney Sheridan, closing in State v. Bernard, reminded all of us that when the constitution was written, a law enforcement agent would have to ride a horse for days just to get a warrant, and then ride that horse for days to get back with it in order to execute it. Given the history and precedent of the amendment, it cannot sincerely be argued that the Fourth Amendment was written for law enforcement’s convenience.


Michael Richardson, arguing for the State, dismissed the issue of coerced consent as ruled in Bumper v. North Carolina. Instead, Richardson emphasized the State's position that "consent" is irrelevant in DWI searches because these searches are all reasonable.  Case:  Brooks v. Minnesota.   When consent becomes irrelevant, an individual’s right of due process is unrecognized, and the U.S. Constitution, specifically the Fourth Amendment is violated.


Minnesota Laws Conflict with the Constitution


The attorneys at Charles A. Ramsay & Associates, PLLC, Roseville, MN, detail the problems with the implied consent laws of Minnesota:


“A statute cannot confer rights on law enforcement officers that the U.S. Constitution denies.”


[W]hat the legislature may not do by statute is bypass the Bill of Rights and/or Minnesota Constitution.

The legislature does not have the power … to do away with constitutional limitations and to exempt law enforcement officers from their scope.”


“The courts have had a long-standing rule that evidence obtained in violation of the Constitution is inadmissible in court, referred to as the "exclusionary rule."


To fix the problem, they write, “The county attorney, the county sheriff, the chief of police, and all other law enforcement personnel in the performance of their sworn duties are subject to the Minnesota Constitution and the United States Constitution …. No other rational answer can be given.”


“Legislators and judges are also subject to the Constitution in the performance of their sworn duties. Enacting and upholding a statute that criminalizes refusal to submit to a warrantless search is unconstitutional. No other legal answer can be given.”


The Foundation of Constitutional Democracy


The constitutional right we value the most—no deprivations of life, liberty, or property without due process of law—began with Magna Carta (June 15, 1215). According to Chief Justice John Roberts, Magna Carta “laid the foundation for the ascent of liberty” and constitutional democracy.


The imbalance of power is inherently coercive, and it is the court’s duty to protect individuals from abuse of government power.


Trampling the Fourth Amendment


The federal courts have recently developed a new doctrine dealing with suppression, calling it the "good faith" exception to the warrant requirement. Again, it suffices to say that if an officer conducts a search that he believes to be constitutional, but that law is later overruled, this "good faith" exception basically means that even though the search was illegal, the evidence is still admissible in court.


“If law enforcement were the chief value in our constitutional scheme, then due process would shrivel and become of little value in protecting the rights of the citizen. But those who fashioned the Constitution put certain rights out of the reach of the police and preferred other rights over law enforcement. . . Under our system of government, police cannot compel people to furnish the evidence necessary to send them to prison.” Breithaupt v. Abram, 352 U.S. 432, 414, 77 S.Ct. 408, 442-443 (1957) (J. Douglas, dissenting)


The Minnesota Implied Consent Advisory says "Minnesota law requires you to submit to a chemical test" and "refusal to submit is a crime."  The implied consent law suggests that everyone who drives in Minnesota is “freely and voluntarily” consenting to warrantless searches of their blood, breath and urine.  Does being a U.S. citizen mean you consent to warrantless searches of your home, computer, phone, and other possessions to ensure compliance with constitutional laws?  The U.S. Constitution was written to restrict the powers of government and protect the rights of citizens.  The implied consent law is granting the government excessive powers at the expense of individual liberties, and one has to believe it will be struck down once it heads to the U.S. Supreme Court.


In the 2001 case of Ferguson v. City of Charleston, the U.S. Supreme Court held that social policy objectives – no matter how valid or laudable – are not a sufficient reason to discard the warrant requirement. When the primary purpose of a search is the collection of evidence for use in a criminal case, the Fourth Amendment requires a warrant.


Idaho, following the path of Nevada, Kansas, and Texas, rejected "implied consent" as a valid basis to conduct a DWI test, overruling its own prior cases in reaching that conclusion .  In the case of State v. Wulff, the Idaho Supreme Court held that "the district court properly concluded that Idaho's implied consent statute was not a valid exception to the warrant requirement" and agreed that the blood test taken from Mr. Wulff was inadmissible as evidence against him. Basically, the Court said that the state could not use Mr. Wulff's blood alcohol evidence against him at trial because the State did not prove that he freely and voluntarily consented to a blood test.


In Aviles v. The State of Texas, the Texas Supreme Court held the state’s warrantless search of Aviles’s blood to be without an exception, and therefore, unconstitutional.”  The court instead held that the state must take into account the totality of the circumstances present in each case, specifically noting that “it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances.”


Included in the opinion given from Riley v. California, “…Our cases have historically recognized that the warrant requirement is 'an important working part of our machinery of government,' not merely 'an inconvenience to be somehow 'weighed' against the claims of police efficiency.'"  They clearly intended that police pursue a warrant, except under rare, defensible conditions, and not just act without one on a regular basis merely out of convenience.


In Navarette v. California, Supreme Court Justice Scalia, wrote in dissent, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.”


Our Legislature made the decision to criminalize the act of not consenting to a warrantless search, yet also passed a specific law mandating the suppression of evidence for any illegal search. Minnesota Statute 626.21 says in no uncertain terms that illegal searches = suppressed evidence.


Probable cause is usually determined by observations of the officer and performance on field sobriety tests.


This case is a black eye to all involved and a clear display of disproportionate power provided only through an unconstitutional law.  This is why the Fourth Amendment was created and why implied consent laws will ultimately be ruled unconstitutional.