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Can the Police Get a Warrant to Force a Drunk Driving Suspect to Submit to a BAC Test
after he has refused to give one voluntarily in violation of the state implied consent statute? The Supreme Court of Washington says yes (Hat tip: FourthAmendment.com).
ShelbyC:
Ironically this is one of the few times a BAC is constitutional.
9.14.2009 12:43pm
Daniel Chapman (mail):
I will have to read the case later when I get time because I can't understand why this is even a close question. If they can show probable cause, why can't they get a warrant?

The problem would be if they tried to force him to submit to a blood test without a warrant based on "exigent circumstances" like they've been allowed to do in Wisconsin for years.
9.14.2009 12:48pm
OrinKerr:
The problem would be if they tried to force him to submit to a blood test without a warrant based on "exigent circumstances" like they've been allowed to do in Wisconsin for years.

See Justice Brennan's opinion in Schmerber v. California allowing that, as well as this AP article today.
9.14.2009 12:52pm
einhverfr (mail) (www):
The opinion seems reasonable.
9.14.2009 12:55pm
carpundit (www):
Vaguely interesting, but I don't see what makes it of broad application. That is, I don't see any Fourth Amendment issues, which is what I usually expect from Professor Kerr's posts. Would someone please tell me what I'm missing?

It has long been the case that refused consent does not bar subsequent warrants. I'm sure there's something here I don't see, which is why I'm asking.
9.14.2009 12:55pm
Off Kilter (mail):
"Sir, we'd like you to voluntarily agree to this test..."

"And if I don't?"

"Well, then we're legally allowed to force you. But we'd hate to do that. So if you could just voluntarily agree, we could all continue to pretend we have freedoms in this country."
9.14.2009 12:56pm
einhverfr (mail) (www):
Daniel Chapman:

The question was both a question of statute and due notice. I.e. the officer tells the suspect "you have the right to refuse a blood alcohol test but if you do we suspend your license" and the guy refuses. Then the officer gets a warrant.

However, let's look at an equivalent hypo. Suppose officers show up at your house. They ask if they can come in and look around and say "you can say no if you want." You say no. They then go get a search warrant. A violation of due process? I don't think so.....

Now, I will say that the state REALLY SHOULD revise its driving literature to clarify drivers' expectations in thi matter.

The only problem I could see would be if the BAC came back to be well under the limit even after backwards calculations. Then the question is whether due process would be violated by the suspension of the license.

In short, I am not entirely sure the implied consent statute is Constitutional. However, I think the search warrant poses no real issues.
9.14.2009 1:01pm
einhverfr (mail) (www):
(the statute allows for the suspension of a drivers license for refusing the blood alcohol test independent of its result.)
9.14.2009 1:03pm
j huettl (mail):
I find it interesting as a citizen of one of the several states that my fourth amendment right is null. But can someone please answer why the the fifth amendment was not used in this case.
9.14.2009 1:20pm
Bob from Ohio (mail):
A blood test is not a search. The state is just using violence to make you testify against yourself.

(Yes, I know that this is not the law. But it should be.)
9.14.2009 1:21pm
Wayne Jarvis:
Wisconsin is also proposing mandatory blood tests for all drivers involved in fatal accidents regardless of probable cause.

The probable cause requirement has been identified as one of those pesky loopholes that allows filthy criminals to walk free.
9.14.2009 1:26pm
troll_dc2 (mail):

Wisconsin is also proposing mandatory blood tests for all drivers involved in fatal accidents regardless of probable cause.


Is there a problem with this proposal apart from the probable-cause issue?
9.14.2009 1:43pm
KenB (mail):
Off kilter says:
And if I don't?"

"Well, then we're legally allowed to force you . . .
I don't practice criminal law, but this seems to me to overlook that, to get a warrant, the police must demonstrate probable cause. Surely we don't want a rule that, if the police ask nicely and you say no, even probable cause won't help thereafter. That would be the end of asking first. Maybe some would see that as salutory, but it seems unrealistic to me.
9.14.2009 1:45pm
Smooth, Like a Rhapsody (mail):
I think the scenario Wayne Jarvis mentions has already been found unconstitutional in another US Supreme Court case 20 yrs ago, right?

But this is not really a close question and I have a hard time relating to anyone who gets terribly exercised about it. There is PC that a crime was committed; there exists evidence of the crime that will disappear in a very short time.
That is why we have search warrants.
9.14.2009 1:47pm
gasman (mail):
I suppose the exigency is that the suspect's liver is busy destroying evidence while folks stand around waiting for a warrant.
In this case getting the sample first, then arguing about whether probable cause existed in the first place might be a good policy. Put the sample in the deep freeze until a proper hearing can be had to review the probable cause, including opportunity for the defendant to have his lawyer get a crack at it. Then, and only then does the sample get tested or discarded. The advantage here is that a second tube similarly collected (like sports doping A and B samples) could be available for disputes.
9.14.2009 1:53pm
arbitraryaardvark (mail) (www):
I'm confused. This is an en banc proceeding of the wash. supreme court, with 6 members rather than the full 9, so there's no dissent by judge Sanders. I'm not used to en banc at the state supreme court level.
9.14.2009 2:01pm
Oren:

Well, then we're legally allowed to force petition a neutral magistrate (with probable cause) for the right to force you. But we'd hate to do that. So if you could just voluntarily agree, we could all continue to pretend we have freedoms in this country.

FIFY.


I suppose the exigency is that the suspect's liver is busy destroying evidence while folks stand around waiting for a warrant.

No need to wait, many counties have an "on call" judge ready to take applications by phone. I think "I observed the driver swerving and he smells like beer" qualifies as sufficient probable cause to issue a warrant for BAC.
9.14.2009 2:01pm
arbitraryaardvark (mail) (www):
No there were 7. Maybe Sanders was recused?
9.14.2009 2:02pm
Oren:


Wisconsin is also proposing mandatory blood tests for all drivers involved in fatal accidents regardless of probable cause.

Given that ~50% of accidents involve alcohol, I find it hard to say that this policy is "regardless of probable cause". It is, in fact, quite probable that one of the drivers is guilty of DUI.
9.14.2009 2:02pm
Oren:
Link to (somewhat biased but factually relevant) information about the phone-warrant system in Palm Beach County, FL.
9.14.2009 2:05pm
Aultimer:
This is just another step on the slope to finding PC based on the refusal to submit to a voluntary test. We mustn't deter the police from their ultimate goal of maximizing revenue from misbehaving citizens.
9.14.2009 2:05pm
Oren:
Aultimer, are you suggesting that magistrates accept search warrants where the affiant produces no PC except refusal?
9.14.2009 2:10pm
einhverfr (mail) (www):
Once again, I have no issue with the warrant. However, I think implied consent laws generally raise Constitutional questions. After spending a little bit of time looking for answers I haven't seen any higher court decisions regarding Constitutionality of these laws.

(All I can find is an unpublished 9th Circuit opinion telling a lower court that abstention from deciding the issue was inappropriate.)

Imagine if the fear of meth labs (currently reaching hysterical levels) were to create an analogous implied consent law regarding searches of houses, allowing officers to request a right to search without a warrant and penalizing those who refuse with a fine or some other penalty. Suppose the officers were required to have probable cause to make such a request but courts were not required to oversee. Constitutional?

Why are blood alcohol tests very different?

The fact is that a search warrant is the proper venue for settling these, not coercing people into consenting to a search.
9.14.2009 2:12pm
ShelbyC:
gasman:

I suppose the exigency is that the suspect's liver is busy destroying evidence while folks stand around waiting for a warrant.


According to the link Orin posted, it's a search incident to arrest. No exigency required.

Oren:

Given that ~50% of accidents involve alcohol, I find it hard to say that this policy is "regardless of probable cause". It is, in fact, quite probable that one of the drivers is guilty of DUI.


Huh. What if I could show that ~50% of men with long hair smoke dope?
9.14.2009 2:12pm
SC Public Defender:
@ Oren

What is this "neutral" magistrate you speak of?
9.14.2009 2:13pm
einhverfr (mail) (www):
@Oren:

Source on your statistics?

Certainly recent statistics seem to show 30-40% traffic fatalities involve alcohol.

However, I think the other issue is that a police officer is likely to be able to articulate reasons why a specific driver is is showing signs of intoxication while another one might not be. Requiring blanket searches in this case seems to run amok IMO with 4th Amendment protections.
9.14.2009 2:26pm
einhverfr (mail) (www):
(i.e. in any given case, the chance is greater or less than 50%)
9.14.2009 2:28pm
ShelbyC:

Given that ~50% of accidents involve alcohol, I find it hard to say that this policy is "regardless of probable cause". It is, in fact, quite probable that one of the drivers is guilty of DUI.


And of course, even if this is true, that only means that it is ~25% likely that a particular driver is guilty.
9.14.2009 2:36pm
einhverfr (mail) (www):
More on implied consent laws any my concern here.

Facile logic suggests that such laws are authorized by Supreme Court precedent. However, the issues posed by implied consent laws are actually somewhat different than the precedent addresses. Thus challenging such laws IMHO doesn't necessarily imply overturning Schmerber-type cases.

The fundamental issue IMO is that implied consent laws punish through statutory penalties the mere refusal to allow a search.

Consider the following example: An officer decides they think I am driving under the influence and I refuse a test. The statute allows my license to now be suspended REGARDLESS of whether I committed a crime other than allowing the search. Now suppose the officer gets a warrant for the search and it comes up negative. Is it Constitutional for my license to be suspended even though I wasn't driving under the influence?

If mere refusal to allow a search is potentially criminal, then we no longer have substantive fourth amendment protections.
9.14.2009 2:36pm
ShelbyC:

If mere refusal to allow a search is potentially criminal, then we no longer have substantive fourth amendment protections.


It's not criminal; the license suspension is an administrative penalty. That's the dodge.
9.14.2009 2:38pm
einhverfr (mail) (www):
SHelbyC:

And of course, even if this is true, that only means that it is ~25% likely that a particular driver is guilty.


Just a little more than that.

If 25% if the drivers in fatal accidents were intoxicated, that would mean a 6.25% chance (25% of 25%) that both drivers were intoxicated, and a 43.75% chance that at least one driver was intoxicated.

So the odd would have to be far less than 50% (which would occur if a 75% of fatalities involved alcohol) but just a little more than 25%.
9.14.2009 2:40pm
ShelbyC:

If 25% if the drivers in fatal accidents were intoxicated, that would mean a 6.25% chance (25% of 25%) that both drivers were intoxicated, and a 43.75% chance that at least one driver was intoxicated.


I think you're assuming too much about distribution. If ~50% of accidents involve drunk drivers, I'd assume that ~25 percent involve one drunk driver, and ~25% + the percentage of drivers on the road who are driving drunk.
9.14.2009 2:51pm
egd:
Continuing einhverfr's proposed Meth Labs Implied Consent Law (which can be cited as the "Stop bears from eating our babies law" for public support)

ShelbyC:

It's not criminal; the license suspension is an administrative penalty. That's the dodge.

So lets classify meth labs as a fire hazard, turning searches of potential meth labs into an administrative/public safety search.

If the searcher happens to find evidence of wrongdoing, then he calls the police. No problem, right?
9.14.2009 2:51pm
TNeloms:
einhverfr:

If 25% if the drivers in fatal accidents were intoxicated, that would mean a 6.25% chance (25% of 25%) that both drivers were intoxicated, and a 43.75% chance that at least one driver was intoxicated.


In the interest of being annoyingly pedantic, that's not actually right. The assumption is only that 50% of accidents involve alcohol. The distribution of the drunkenness of drivers involved in those accidents could be anything. For example, it could be that drunken accidents only occur when both drivers are drunk, in which case there's a 50% chance that a given driver involved in the accident is drunk. Or, it could be that two drunken drivers always magically avoid each other, so all drunken accidents involve exactly one drunken driver, in which case each driver has a 25% chance of being drunk. Your example is a third possibility. So depending on that distribution, the chances could be anywhere from 25% to 50%.

But anyway, I think this case involves only one driver.

Sorry for the diversion.
9.14.2009 2:53pm
einhverfr (mail) (www):
ShelbyC:

Suppose we give folks a property tax break if they allow police to search their property at any time and for any reason.

Constitutional?
9.14.2009 2:54pm
ShelbyC:

Suppose we give folks a property tax break if they allow police to search their property at any time and for any reason.

Constitutional?


You're asking the wrong guy, I agree with you, as my post at #1 indicates, though not very clearly. Which is why I refered to the administrative penaly arguement as a "dodge".
9.14.2009 2:59pm
einhverfr (mail) (www):
egd:

So lets classify meth labs as a fire hazard, turning searches of potential meth labs into an administrative/public safety search.


In the interest of keeping bears from eating our babies, I would actually go further:

1) Failure to consent to a search results in a $2000 property tax surcharge. This is an administrative penalty, not a fine.
2) Search is conducted and/or overseen by police, just like a blood alcohol test.

Still Constitutional?
9.14.2009 3:00pm
einhverfr (mail) (www):
ShelbyC:

What is fascinating in this case is that I can't find any higher court opinions on Constitutionality of the statute regarding penalties for refusing a search independent of driving drunk. At best I have seen "the court should consider" sorts of things.

Of course when the search turns up the evidence expected, it is hard to argue probable cause didn't exist. However, one could manufacture circumstances either by accident or intent that would lead a reasonable officer to believe probable cause existed when the individual was not intoxicated. I suspect that this hasn't come up because folks in that situation don't refuse to allow the tests.
9.14.2009 3:05pm
whit:
there is a cop in my agency who has done a bunch of these. usually via telephonic warrants. it started when the simulator solution had issues due to the state lab screwup, so he'd just take em to the hospital with a warrant.

fwiw, WA state allows drawing of blood by force in several instances WITHOUT a warrant, like MV assault resulting in serious bodily injury, etc. i can provide cites if requested.
9.14.2009 3:08pm
Michael Alexander:

"Sir, we'd like you to voluntarily agree to this test..."

"And if I don't?"

"Well, then we're legally allowed to force you. But we'd hate to do that. So if you could just voluntarily agree, we could all continue to pretend we have freedoms in this country."

In my state, the police are allowed to tell a person what they will make application for a search warrant if the person refuses consent. The judicial quote is something like, "the police may tell a person what will happen next, and even if the subject does not like their choices, it does not render consent involuntary."

As to the implied consent - as long as driving is a privilege and not a right, what is the problem? To get the privilege to drive a person must consent to have their breath tested in certain situations. If a person does not want to give consent then they need not exercise their privilege.
9.14.2009 3:10pm
Dave N (mail):
A blood test is not a search. The state is just using violence to make you testify against yourself.
By that argument, so are DNA swabs, fingerprints, and bite molds. Sorry, evidence (other than your actual thought processes conveyed through speech) taken from your person has never been held to be "testimony."
9.14.2009 3:12pm
Kenvee:
You can get a warrant if you believe you have probable cause to support a search. There might also be means of achieving the same result, such as asking for consent, getting a subpoena duces tecum, or various administrative options. The fact that there are other options available doesn't invalidate any of them. And the fact that you try one, it doesn't work, and you try another doesn't invalidate it either. I've never heard of a home search warrant invalidated just because the officers asked for consent first, and I would think it was uncommonly silly if it was. Why is a blood draw warrant any different?
9.14.2009 3:13pm
fromp:
I thought the usual procedure was to get a blood-sucker order.
9.14.2009 3:13pm
Bob from Ohio (mail):

By that argument, so are DNA swabs, fingerprints, and bite molds. Sorry, evidence (other than your actual thought processes conveyed through speech) taken from your person has never been held to be "testimony."


I know the law. Its just wrong.

Other than maybe fingerprints, none of should be allowed. Your body does not belong to the state.
9.14.2009 3:20pm
Ak:
"When Officer Darryll Dowell of the Nampa Police Department is on patrol, he will pull up at a stoplight and start casing the vehicle next to him. Nowadays, his eyes will also focus on the driver's arms, searching for a plump, bouncy vein."

God, that is freaking creepy. Thirty years ago if you suggested police would regularly start eyeing you to forcibly extract blood you'd have been shot. This country is heading down a highly disturbing slope.
9.14.2009 3:21pm
einhverfr (mail) (www):

As to the implied consent - as long as driving is a privilege and not a right, what is the problem? To get the privilege to drive a person must consent to have their breath tested in certain situations. If a person does not want to give consent then they need not exercise their privilege.


The 9th Circuit has held it poses Constitutional questions. Unfortunately, it doesn't seem to have provided any answers for those questions.

Once again there are two questions here:
1) Constitutionality of the search without consent
2) Constitutionality of penalties for not consenting to the search.

Given that police have the Constitutional authority to conduct the search without consent if they have probable cause, I don't see how #2 can reasonably follow.
9.14.2009 3:35pm
spudbeach (mail):
The thing that really gets me is from the NY Times article (repeated widely on the net): Police officers, barely trained, doing the blood draw.

To me, that's about as good as a police officer being a fire marshall doing the arson investigation (see Cameron Todd Willingham), or about as good as an untrained cop examining my computer (see a case where using linux was given as probable cause for a search warrant at http://news.slashdot.org/article.pl?sid=09/04/14/193217).

Having a cop do the venipuncture in the station means poor training, poor equipment, half-baked sterile technique, and somebody who knows they have immunity doing something that they know darn well could injure me badly. Can we at least require that the sample be done by a qualified person that will hold a duplicate sample for the defense attorney? Or better yet, develop and require a method for getting the breath BAC on an unwilling participant?

In life, perception matters. It is wrong for the legal profession to fall back on the "well, you've got a warrant" excuse. The perception that this is akin to legal rape must be dealt with.
9.14.2009 3:40pm
einhverfr (mail) (www):
Also I would point out that I think that further developments support the limitation of a number of warrant exceptions including Carrol v. United States (automobile exception), Schmerber v. California (BAC exception), etc. These should be limited to cases where telephonic warrants are not practical to obtain in a timely manner either due to emerging failures in communications technology or due to inability to contact a magistrate.

These cases have been undermined by developments in law enforcement capabilities and the ability to get warrants cases that before were problematic.
9.14.2009 3:41pm
egd:
einhverfr (mail) (www):

In the interest of keeping bears from eating our babies, I would actually go further:

1) Failure to consent to a search results in a $2000 property tax surcharge. This is an administrative penalty, not a fine.
2) Search is conducted and/or overseen by police, just like a blood alcohol test.

Still Constitutional?

Well the cynic in me says yes, anything to keep bears from eating our babies.

But I'm pretty sure that such a statute would be stricken down not strictly as unconstitutional, but rather as overreaching. Some vestiges of freedom must be preserved.
9.14.2009 3:41pm
einhverfr (mail) (www):
Spudbeach:

To me, that's about as good as a police officer being a fire marshall doing the arson investigation (see Cameron Todd Willingham), or about as good as an untrained cop examining my computer (see a case where using linux was given as probable cause for a search warrant at http://news.slashdot.org/article.pl?sid=09/04/14/193217).


Slashdot got that story wrong. I read the search warrant affidavit and the key evidence introduced as probable cause came from informants who had previously given reliable information to police in the past, from server logs from the campus etc. I thought the Linux bit had much more to do with the scope of the warrant rather than probable cause.

Now the story in question raised Lori-Drew-like Constitutional issues, but not search warrant issues. The basic issue was that this was an investigation as to who essentially outed someone as gay, and then sought to apply (Lori-Drew-like) CFAA and theft of service arguments over that action. You can find better treatment of the case at this blog.
9.14.2009 3:48pm
Richard A. (mail):
That 50 percent number (more commonly expressed as 41 percent) is for "alcohol-related" accidents and includes many in which the driver is perfectly sober but someone else has a BAC of any recognizable number at all. So if a sober driver plows into a table of people having wine with dinner at a sidewalk restaurant, that becomes an "alcohol-related" crash.

The actual humber of fatal crashses involving drunken drivingg is around 20 percent. And in most such cases, as with our friend the motorcyclist, the knucklehead in question is also the victim.
9.14.2009 3:57pm
pintler:
This is always discussed in terms of DUI and implied consent, but isn't it the same fact pattern as if a suspect is caught near a shooting, matches the description of the shooter, and the police want to test for gunshot residue? Do people object
to that?


(BTW, I recently heard about officers being given abbreviated training as phlebotomists so they can do their own blood draws, and I agree that gives me the willies).
9.14.2009 3:59pm
Wayne Jarvis:

Given that ~50% of accidents involve alcohol, I find it hard to say that this policy is "regardless of probable cause".


Most of these statistics come from advocacy groups like MADD. Pay close attention when you see the "involve alcohol" langauge. This does not mean that one of the drivers was drunk. Some "studies" record any accident where any person in a car (including passengers) has been drinking (but not necessairly legally intoxicated as "involving alcohol."
9.14.2009 4:06pm
Dave N (mail):
Other than maybe fingerprints, none of should be allowed. Your body does not belong to the state.
Neither does your home or your car. If you want to argue that DNA, BAC, etc. should not be allowed without a warrant and probable cause, that is a plausible, reasonable argument. If you want to argue that such things should not be allowed at all, then I respectfully believe your argument is neither plausible nor reasonable.
9.14.2009 4:16pm
ShelbyC:

What is fascinating in this case is that I can't find any higher court opinions on Constitutionality of the statute regarding penalties for refusing a search independent of driving drunk. At best I have seen "the court should consider" sorts of things.


Yeah, it's almost like no judge wants to be "that guy" :-)
9.14.2009 4:17pm
Josh K (mail):
This was not an en blanc hearing. Sanders wrote a dissent, it is just in a different file
9.14.2009 4:18pm
AnthonyJ (mail):
So lets classify meth labs as a fire hazard, turning searches of potential meth labs into an administrative/public safety search.

If the searcher happens to find evidence of wrongdoing, then he calls the police. No problem, right?

Actually, meth labs are fire hazards (not to mention hazmat sites), and having an inspector tromping through looking for code violations isn't a terribly exotic dodge for searching a building . However, it still requires a reasonably high standard of evidence, and you don't call the police after finding evidence, you generally just request police assistance ahead of the fact (given that people who make meth are often armed, and the fumes from a meth lab are likely to put the people there in an altered mental state even if they weren't already doing drugs before hand, holding an inspection of a meth lab without armed backup isn't wise).
9.14.2009 4:29pm
John Burgess (mail) (www):
Pintler: Drawing blood really isn't rocket science.

When I was a sophomore in HS, I was drawing blood in an Air Force hospital where I was working as some sort of 'candy striper'. This, in the days even before the vacuum tube draws, was not difficult.

I neither killed or infected a donor nor compromised a sample.

I hesitate to bring in the trained monkeys, but they could probably do it as well.

Further, to the best of my knowledge, these are not roadside draws--that introduces unnecessary hazards--but done back at the station where one or more officers (if not an on-duty nurse) can have better training to do it.
9.14.2009 4:39pm
einhverfr (mail) (www):
AnthonyJ:

Take a look at the this sixth-circuit opinion. In that case, they even denied qualified immunity!

And this one from the 7th circuit. This one was decided on the basis of third party consent.

So I don't think it is at all sufficient to suggest that inspectors can enter a home and search for code violations without either consent or a warrant.
9.14.2009 4:56pm
AnthonyJ (mail):
I didn't claim that fire inspectors could enter a home and search without a warrant. However, getting probable cause to search for code violations may be easier than getting one for a meth lab specifically.
9.14.2009 5:35pm
Dilan Esper (mail) (www):
More on implied consent laws any my concern here. Facile logic suggests that such laws are authorized by Supreme Court precedent. However, the issues posed by implied consent laws are actually somewhat different than the precedent addresses. Thus challenging such laws IMHO doesn't necessarily imply overturning Schmerber-type cases. The fundamental issue IMO is that implied consent laws punish through statutory penalties the mere refusal to allow a search.

Not really. The key to understanding this is that there is actually no such thing as an implied consent exception to the Fourth Amendment. (Indeed, I find the whole notion of "implied consent" offensive. No, you don't give up your actual Fourth Amendment rights for life when you sign up for a driver's license.)

However, even though there is actually no implied consent, these laws are nonetheless constitutional as a form of special needs search related to the operation of an automobile. And you can certainly be punished for refusing to comply with an officer's order that you submit to a valid special needs search.
9.14.2009 5:45pm
pintler:

Pintler: Drawing blood really isn't rocket science.


A nurse or doctor is unlikely to be angry at me because I made them drive across the county, failed the attitude test, etc, and so is unlikely to do a bad job deliberately.

I'm all for catching drunk drivers, but I think someone stopped for it should be able to say "lets go straight to the hospital and get a blood test", in fact, I think it should be mandatory if the subject requests it.

Moreover, given the amount of training mentioned in this article I wonder about the time commitment. I frequently hear the police trainers lamenting that they can't get enough training days for marksmanship training, patrol carbine training, shotgun training, Less Lethal training, taser training, and so on. We're asking the police to be able to engage in a high speed chase, a shootout, deliver a baby, know fourth amendment law, ad infinitum - and now keep up with the latest in phlebotomy, too? Are we sure driving to the station is that much faster than driving to the nearest ER?
9.14.2009 5:52pm
einhverfr (mail) (www):
AnthonyJ:

I didn't claim that fire inspectors could enter a home and search without a warrant. However, getting probable cause to search for code violations may be easier than getting one for a meth lab specifically.


I would think, similar to the issue before the 6th circuit, that if criminal charges can follow from what you are looking for, that it is not a mere administrative search. I.e. if you think there is a meth lab there and that is what you are looking for an administrative warrant is not the appropriate means to authorize the search.
9.14.2009 5:54pm
einhverfr (mail) (www):
Dilan:


However, even though there is actually no implied consent, these laws are nonetheless constitutional as a form of special needs search related to the operation of an automobile.


Why shouldn't Schmerber v. California function as an outer line to what the 4th Amendment allows? Once you go beyond "the officer can mandate a test without consent" to "the state can punish someone for refusing to consent" I think one goes into very dangerous territory.
9.14.2009 6:04pm
ShelbyC:

And you can certainly be punished for refusing to comply with an officer's order that you submit to a valid special needs search.


Well, there's a difference between refusing to comply and refusing to consent.
9.14.2009 6:14pm
Oren:

Imagine if the fear of meth labs (currently reaching hysterical levels) were to create an analogous implied consent law regarding searches of houses [...] Constitutional?

No.


Why are blood alcohol tests very different?

Because you don't own the public roads.
9.14.2009 6:16pm
Oren:

Imagine if the fear of meth labs (currently reaching hysterical levels) were to create an analogous implied consent law regarding searches of houses [...] Constitutional?

No.


Why are blood alcohol tests very different?

Because you don't own the public roads.
9.14.2009 6:16pm
ShelbyC:

these laws are nonetheless constitutional as a form of special needs search related to the operation of an automobile.


How 'bout blood tests without a warant for people for whom there is pc to believe they possessed drugs?
9.14.2009 6:17pm
Oren:

Huh. What if I could show that ~50% of men with long hair smoke dope?

Sorry, I was unclear. 40-50% of accidents are caused by alcohol.

Nobody suggests (let alone proves) that having long hair causes dope smoking.
9.14.2009 6:18pm
Oren:

What is this "neutral" magistrate you speak of?

The one who appointment is controlled by The People, as assembled in the State legislature.

If you don't like the way your State appoints magistrates, don't complain about the law -- fix the appointment process!
9.14.2009 6:18pm
Oren:

Is it Constitutional for my license to be suspended even though I wasn't driving under the influence?

It would be Constitutional for the State to forbid driving motor vehicles entirely, provided they could come up with any rational basis for doing so. A fortiori ...
9.14.2009 6:21pm
Upend, Coming:
I am surprised that some of you thought that statistics can create probable cause. Did you guys forget about individualized suspicion or did I just make it up?
9.14.2009 6:22pm
Richard A. (mail):
Sorry, that should read: "The actual number of fatal crashes involving drunken driving is around 20 percent. And in most such cases, as with our friend the motorcyclist, the knucklehead in question is also the victim."
Also, an interesting site that challenges that inaccurate figure is RIDL at www.ridl.us.

This group offers a reward for anyone who can prove the thesis that about 40 percent of fatal crashes are due to drunken driving.
9.14.2009 6:23pm
Dilan Esper (mail) (www):
Why shouldn't Schmerber v. California function as an outer line to what the 4th Amendment allows? Once you go beyond "the officer can mandate a test without consent" to "the state can punish someone for refusing to consent" I think one goes into very dangerous territory.

The punishment is for refusing to comply, not refusing to consent.
9.14.2009 6:24pm
Oren:

In the interest of keeping bears from eating our babies, I would actually go further:

1) Failure to consent to a search results in a $2000
property tax surcharge. This is an administrative penalty, not a fine.
2) Search is conducted and/or overseen by police, just like a blood alcohol test.

Still Constitutional?

Unconstitutional condition, since there is not an "essential nexus" between the benefit (tax break) and the condition (searches).

Note that the unconstitutional condition doctrine simply cannot apply when talking about revocation of a driver's license, since there is no constitutional right to have it in the first place.
9.14.2009 6:26pm
ShelbyC:

The punishment is for refusing to comply, not refusing to consent.


You shure 'bout that? My understanding is that you can get nailed for just saying, Officer I refuse this test. And I'm not sure if, in general, aiding in a search by, say, blowing, counts as complying or consenting.
9.14.2009 6:33pm
ShelbyC:

Note that the unconstitutional condition doctrine simply cannot apply when talking about revocation of a driver's license, since there is no constitutional right to have it in the first place.


Well, revocation of a Driver's licensse is an infringement of Liberty, which there is a right to have.
9.14.2009 6:35pm
Dilan Esper (mail) (www):
You shure 'bout that? My understanding is that you can get nailed for just saying, Officer I refuse this test. And I'm not sure if, in general, aiding in a search by, say, blowing, counts as complying or consenting.

It is definitely not consent. It's a special needs search. You comply because you aren't free not to. And if you don't comply, you are subject to sanction.

Here's an example. Let's say you are crossing the border into the US. The border agent asks to search your car. You say "no". The border agent asks you to get out of the car so that he can perform his search. You say "no" again.

At that point, (1) the officer has the right to perform the special needs search, and (2) you are in violation of the law by refusing to comply with a valid directive from a CBP officer.
9.14.2009 6:37pm
Wayne Jarvis:

Because you don't own the public roads.


So who owns my circulatory system?
9.14.2009 6:41pm
pintler:

Note that the unconstitutional condition doctrine simply cannot apply when talking about revocation of a driver's license, since there is no constitutional right to have it in the first place.


'Driving is a privilege, not a right' is certainly settled law, but I wonder about the doctrine. IIUC, driver licensing started back when driving a car was considered to be incredibly demanding, like we view piloting a 747 today. No licenses were required for driving a wagon or stagecoach, even though I think today we'd think driving those requires as much skill as driving a car - at least from the harrowing accounts I have read of some stage trips. I'm not sure George Washington would have thought taking the horse or wagon to town was a privilege rather than a right, and if he were alive today, I'm not sure he wouldn't view driving the same way.
9.14.2009 6:46pm
Oren:

Well, revocation of a Driver's licensse is an infringement of Liberty, which there is a right to have.

Laws against murder are also an infringement of liberty.
9.14.2009 6:48pm
Oren:

So who owns my circulatory system?

You do, and you need not consent to blood being drawn.

On the other hand, since you don't own the roads, the State can revoke your right to use the public roads (you can still drive around your own private property as you please).
9.14.2009 6:49pm
einhverfr (mail) (www):
Oren:

Note that the unconstitutional condition doctrine simply cannot apply when talking about revocation of a driver's license, since there is no constitutional right to have it in the first place.


But wait---

You said that the refusal to allow a search being penalized by a tax surcharge would be Unconstitutional on the basis of search and seizure doctrine, right? Not takings doctrine, right?

So my point is that any penalty for refusing to allow a search should fall in that same category. If one can't apply a tax surcharge of $2000, $100, or even $10 for refusing to allow a search of a house, then taking away a drivers' license one paid $25 in fees to obtain seems out of the question too.
9.14.2009 6:53pm
einhverfr (mail) (www):
Oren


On the other hand, since you don't own the roads, the State can revoke your right to use the public roads (you can still drive around your own private property as you please).


Not true. If so, I could be banned from being a passenger in a car on a public highway/right of way on the government's mere say-so. We know that isn't the case. We also know that roadblocks searching for drugs aren't Constitutional either. The government owns/maintains the roads, but the PEOPLE own the right-of-way.

I am not saying drivers licenses can't be revoked or suspended for criminal conduct. I am saying that the proper approach is to have the officer get a warrant or use the Schmerber exception, rather than to punish people for saying "I won't consent to a search."
9.14.2009 6:57pm
SuperSkeptic:
Note that the unconstitutional condition doctrine simply cannot apply when talking about revocation of a driver's license, since there is no constitutional right to have it in the first place.

Actually, IIRC, SCOTUS has said (probably in dicta) driver's licenses are either liberty or property interests protected by due process in other contexts. it's just that in the DUI context, we don't want that. I wish I could find the case...it was Goldberg-esque.

I don't know about you geezers on here, but driving is as essential as walking around in today's world. I'm sorry, but I shouldn't have to beg the state for permission to do that, or accept conditions I can't bargain for - don't judges strike down contracts of adhesion between private parties for much, much less?
9.14.2009 7:12pm
SuperSkeptic:
maybe it was a state supreme court...grr i cant find it
9.14.2009 7:16pm
Mike McDougal:

So lets classify meth labs as a fire hazard, turning searches of potential meth labs into an administrative/public safety search.

Ma'am, we're going to have to revoke your certificate of occupancy until we can be sure your house is safe.
9.14.2009 7:17pm
einhverfr (mail) (www):
Pointing out the absurdity of Oren's extremist position:

On the other hand, since you don't own the roads, the State can revoke your right to use the public roads (you can still drive around your own private property as you please).


Since most of us don't grow our own food, and require access via public roads to essential services, it doesn't seem to me that the government could properly revoke an individual's use of public roads except by due process of law, for such is a substantial burden on one's personal liberty.

Certainly I can't think of anyone else here who thinks by mere administrative action that a city could forbid a given individual from walking across town on city streets and sidewals to buy groceries, or to be a passenger in a motor vehicle such as an ambulance.

The government has no right to prevent someone from USING the public roads as a mere administrative measure (for example because you are behind on your property taxes). Only house arrest or imprisonment can effect such control.

As I say, my view is that police are already able to seize someone who doesn't consent, drive them to a hospital, and obtain a blood test. Going further and saying "you don't want to give me permission to search you? Ok, we will take away your drivers' license" is one step too far. (Given developments in telephonic warrants, I wouldn't be adverse to requiring a telephonic warrant where possible.)

If we adopt Oren's reasoning, the right to essentially be free from house arrest (because most of us live on property bounded substantially by public right-of-ways) could be contingent on giving up any arbitrary Constitutional right, and that would mean we don't have any effective Constitutional rights left.
9.14.2009 7:19pm
Dilan Esper (mail) (www):
I don't know about you geezers on here, but driving is as essential as walking around in today's world. I'm sorry, but I shouldn't have to beg the state for permission to do that, or accept conditions I can't bargain for - don't judges strike down contracts of adhesion between private parties for much, much less?

Again, "implied consent" is a lie told by state DMV's. (They love to pretend that drivers have no rights-- they latch onto the "driving is a right, not a privilege" mantra for the same reason.) You are not consenting to DUI tests when you apply for your license, and indeed, there's no such thing as a blanket waiver of your Fourth Amendment rights in perpetuity.

What you ARE doing is driving a car, which subjects you to special needs searches that are related to the particular dangers of automobile operation. And you are subject to that WHETHER OR NOT the state makes you sign an implied consent when you get the license.
9.14.2009 7:19pm
einhverfr (mail) (www):
Dilan Esper:

What you ARE doing is driving a car, which subjects you to special needs searches that are related to the particular dangers of automobile operation. And you are subject to that WHETHER OR NOT the state makes you sign an implied consent when you get the license.


But my concern with this is not the question of whether a search can be done. We all know that a search CAN be, given probable cause, and that the warrant requirements for such a search are not strict (I personally think officers should be required to seek warrants in this area where practical, but admit to possibilities of cases where even with modern communications infrastructure it might not be practical).

The question is whether saying "no, I don't consent to be searched" should be subject to specific additional measures which have punitive effects. That strikes me as a dangerous direction.
9.14.2009 7:31pm
Dilan Esper (mail) (www):
The question is whether saying "no, I don't consent to be searched" should be subject to specific additional measures which have punitive effects. That strikes me as a dangerous direction.

Does that concern apply to other special needs searches as well, such as the search upheld in Skinner v. Department of Transportation? Or just DUI tests?
9.14.2009 7:34pm
SuperSkeptic:
Pointing out the absurdity of Oren's extremist position:
thanks.

Again, "implied consent" is a lie told by state DMV's.

If by "lie" you mean "bullshit" then I'm with you. Otherwise, implied consent is statutory. It exists. Read the case.

Special needs exemptions to the warrant requirement are a class of judicially created rules to allow the police to do things to us when the constitution seems burdensome or unreasonable - like other exigency exceptions. Just because the state cries "special needs" should mean nothing - which I think a bunch of people have tried to show by analogy (however inartfully) to fire/administrative searches and meth labs. If that was determinative, then they'd cry it every time, but it's not, the judges only buy it sometimes.
9.14.2009 7:43pm
ray_g:
Just as their are "war on drugs" exceptions to the Bill of Rights, I suppose that there are "anti-DUI" exceptions also.

When I was a 16 year old taking drivers ed I thought that "implied consent" was a bogus concept, and still do at 53. I also have an objections to DUI checkpoints and the like. But since it is aimed at those evil drunk drivers, and, as always, is "for the children", I guess anything goes.

Oh, and the ".. driving is a privilege and not a right.." bromide is the most convienient excuse for government overstepping since the Commerce Clause.
9.14.2009 7:44pm
SuperSkeptic:
The question is whether saying "no, I don't consent to be searched" should be subject to specific additional measures which have punitive effects. That strikes me as a dangerous direction.

This would be clearly unconstitutional. The trick is, as others have pointed out, (and the opinion does this) is to say that the search was based on the PC NOT THE REFUSAL.
9.14.2009 7:45pm
Oren:

You said that the refusal to allow a search being penalized by a tax surcharge would be Unconstitutional on the basis of search and seizure doctrine, right? Not takings doctrine, right?

So my point is that any penalty for refusing to allow a search should fall in that same category.

Revoking a driver's license is administrative, not a "penalty".


Not true. If so, I could be banned from being a passenger in a car on a public highway/right of way on the government's mere say-so.

First of all, the authority granted by a statute duly passed by The People is not "the government's mere say so".


We also know that roadblocks searching for drugs aren't Constitutional either.

Only by dint of higher legislative (Constitutional) authority granted by the same "The People".


The government owns/maintains the roads, but the PEOPLE own the right-of-way.

Yes, The People, NB: not "a person".

Since the right of way is own by The People, they may prescribe the manner in which it may be used.
9.14.2009 7:46pm
Oren:

I am not saying drivers licenses can't be revoked or suspended for criminal conduct. I am saying that the proper approach is to have the officer get a warrant or use the Schmerber exception, rather than to punish people for saying "I won't consent to a search."

No matter how much you labor to relabel it, the authority to regulate the roads is civil in nature, not criminal.


Actually, IIRC, SCOTUS has said (probably in dicta) driver's licenses are either liberty or property interests protected by due process in other contexts. it's just that in the DUI context, we don't want that. I wish I could find the case...it was Goldberg-esque.

No doubt. The SCOTUS has said that property interest attaches in welfare benefits too!


I don't know about you geezers on here, but driving is as essential as walking around in today's world. I'm sorry, but I shouldn't have to beg the state for permission to do that, or accept conditions I can't bargain for - don't judges strike down contracts of adhesion between private parties for much, much less?

(1) Walking does not carry significant external costs.

(2) Government is always a contract of adhesion. We do not give 18 year olds the opportunity to renegotiate the Constitution on an individual basis.
9.14.2009 7:50pm
einhverfr (mail) (www):
Dilan:
Are you talking about Skinner v. Railway Labor Executives' Association?

Assuming your case is the one I linked to, I think there are legitimate issues raised, but the fundamental question in that case is different: Whether mandatory drug tests can result, as a company's policy, in the dismissal of any employee who fails one. This is substantially different than the case of a government requiring a search.

However, I see several questions that need to be asked when trying to understand whether a given warrantless search is unreasonable:

1) How great is the privacy infringement of the search?
2) How great is the liberty infringement when the consent for a search is not given?
3) What are the possible sanctions for a certain search results?
4) What is the public safety interest in the search?

Now where probable cause exists, the government doesn't need consent. It may need a warrant if these are broadly practical for a given class of circumstances (unlike those in cases like Carrol or Shmerber), but it doesn't need consent. Therefore I think that any statutory penalty for refusing to consent to a search which can only be done under probable cause impermissibly undermines the 4th Amendment.

Where probable cause doesn't exist (the Skinner case, TSA checkpoints in airports, etc), the rest of the issues have to be considered. I think that the airport checkpoints are probably OK. I think that, provided that dismissal was the only penalty for testing positive, the Skinner case is reasonable too. However, if in the Skinner case, criminal charges might be a possibility as well, I would side differently.

With regard to airport checkpoints, my reasoning includes the fact that these do not generally apply to general aviation, and that as annoying as it can be to drive across the US it is still a practical possibility.
9.14.2009 7:54pm
ShelbyC:

Laws against murder are also an infringement of liberty


I'd argue that they certainly are not, but even if they are, the govt can't place unconstitutional conditions on your right to murder. They gotta either outlaw it or not.
9.14.2009 7:56pm
SuperSkeptic:
(1) Walking does not carry significant external costs.

Always the externality argument from the proponents of regulation...I swear, it's the same thing everytime. As I've said many times before, there is a great argument ad absurdum against crying "externality"

(2) Government is always a contract of adhesion. We do not give 18 year olds the opportunity to renegotiate the Constitution on an individual basis.

Maybe we should, then it would legitimize that "WE THE PEOPLE" idea you keep falling back on.

We could give people a chance to live outside of it, like the Amish do...
9.14.2009 7:56pm
Oren:

Since most of us don't grow our own food, and require access via public roads to essential services, it doesn't seem to me that the government could properly revoke an individual's use of public roads except by due process of law, for such is a substantial burden on one's personal liberty.

Interestingly, the Supreme Court has said that the right to assemble presupposes the right to transport. So you can be denied the right to travel by some , but the government cannot, in sum total, deny you the right to travel in general.

Compare: Kent v. Dulles (357 U.S. 116, 125) with Gilmore v. Gonzales, (435 F.3d 1125) and Miller v. Reed (176 F3.d 1202)
9.14.2009 7:59pm
ShelbyC:
@Dylan, "special needs" get less and less special every year. Nowdays I can't even challenge a search without getting searched.
9.14.2009 8:01pm
Oren:

Certainly I can't think of anyone else here who thinks by mere administrative action that a city could forbid a given individual from walking across town on city streets and sidewals to buy groceries, or to be a passenger in a motor vehicle such as an ambulance.

Rational basis.


The question is whether saying "no, I don't consent to be searched" should be subject to specific additional measures which have punitive effects. That strikes me as a dangerous direction.

But anything can be "punitive".


Maybe we should, then it would legitimize that "WE THE PEOPLE" idea you keep falling back on.

Maybe. Personally, I'm quite fond of the fact that the laws against raping me are not up for renegotiation every time a would-be criminal objects that he was not personally involved in drafting them.

The fact that criminal laws adhere to all citizens irrespective of their consent is quite central to protecting life and liberty.
9.14.2009 8:04pm
Oren:

With regard to airport checkpoints, my reasoning includes the fact that these do not generally apply to general aviation, and that as annoying as it can be to drive across the US it is still a practical possibility.

Indeed. Quoting the 9CA in Gilmore

Like the plaintiff in Miller, Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him.
9.14.2009 8:06pm
einhverfr (mail) (www):
Oren:


Certainly I can't think of anyone else here who thinks by mere administrative action that a city could forbid a given individual from walking across town on city streets and sidewals to buy groceries, or to be a passenger in a motor vehicle such as an ambulance.


Rational basis.



See, but this was in response to your suggestion that since the government owns the roads, they can exclude anyone from using them as a mere administrative action. See my original post for my quote of your post. Use is quite a bit more broad than operating a motor vehicle.

The simple fact is that travelling at all means using public roads. As you note the Supreme Court has held that there is a general right to travel. Hence your argument that this is based on control over public roads can't hold up.

Once again, my issue is that, given that the police have a right to make the search even if obtaining a warrant isn't practical, there is no reason that for suspending a driver's license due to refusing to allow a search.

For example, suppose I refuse a search on the basis that I think the law is unconstitutional and want to make a point. The officer then gets a warrant and drives me to a hospital to get a blood test. The blood test comes up negative. Still Constitutional to suspend my license?

If we go that far, why not make implied consent to all vehicular searches a matter for driving? I.e. you get stopped, you must consent to have your car searched for drugs or lose your license.... I just don't see that flying.
9.14.2009 8:14pm
Oren:

See, but this was in response to your suggestion that since the government owns the roads, they can exclude anyone from using them as a mere administrative action.

So long as the statute authorizing such exclusion is rationally related to a legitimate government interest.
9.14.2009 8:16pm
einhverfr (mail) (www):
Oren:

Further noting that in Gilmore, Gilmore could have paid quite a bit more and hired a GA flight. If he had, no such requirements would have occurred.

So he wasn't EVEN excluded from airplane travel, just excluded from regularly scheduled commercial airline travel.
9.14.2009 8:17pm
einhverfr (mail) (www):
(I have never had to provide ID or go through any security when flying on GA flights, though admittedly these are essentially bush flights on a seaplane.)
9.14.2009 8:18pm
einhverfr (mail) (www):
Oren:

So long as the statute authorizing such exclusion is rationally related to a legitimate government interest.


Ok, so you are saying one has a general Constitutional right to be on public roads (via the liberty guarantee) right?
9.14.2009 8:21pm
Oren:

Once again, my issue is that, given that the police have a right to make the search even if obtaining a warrant isn't practical, there is no reason that for suspending a driver's license due to refusing to allow a search.

There is no reason to grant the driver's license in the first place either.


For example, suppose I refuse a search on the basis that I think the law is unconstitutional and want to make a point. The officer then gets a warrant and drives me to a hospital to get a blood test. The blood test comes up negative. Still Constitutional to suspend my license?

Yes. Again, this isn't a criminal penalty just because it's punitive.


If we go that far, why not make implied consent to all vehicular searches a matter for driving? I.e. you get stopped, you must consent to have your car searched for drugs or lose your license.... I just don't see that flying.

Because you didn't not read the unconstitutional conditions doctrine.

There is no nexus between the condition (consent searching for drugs) and the benefit (being able to drive a car). There is a substantial nexus, however, between the condition (consent to a BAC) and the benefit (being licensed to drive a car).

See Nollan v. California Coastal Commission, 483 U.S. 825 (1987):

The Court finds this an illegitimate exercise of the police power because it maintains that there is no reasonable relationship between the effect of the development and the condition imposed.
9.14.2009 8:24pm
Oren:

Ok, so you are saying one has a general Constitutional right to be on public roads (via the liberty guarantee) right?

One certainly has a liberty interest in walking down the public road, yes. See, e.g. Chicago v. Morales.

It is not, however, a fundamental interest that would attach strict scrutiny.
9.14.2009 8:25pm
ShelbyC:
Well, almost 100% of drug traffing occurs using the public roads. OK to require folks to consent to a search for drugs before using the public roads?
9.14.2009 8:33pm
einhverfr (mail) (www):
Oren:


There is no reason to grant the driver's license in the first place either.


As long as I can have reasonable reaplacements in my city property (for example, a horse-drawn carriage), I agree with you. If it is customary for cities to ban the keeping of equivalent replacements and their requirements (horses, etc) then I would disagree with you.
9.14.2009 8:38pm
Oren:

Well, almost 100% of drug traffing occurs using the public roads. OK to require folks to consent to a search for drugs before using the public roads?

Asked and answered only 2 posts up!
9.14.2009 8:43pm
Oren:


As long as I can have reasonable reaplacements in my city property (for example, a horse-drawn carriage), I agree with you. If it is customary for cities to ban the keeping of equivalent replacements and their requirements (horses, etc) then I would disagree with you.


Walking, biking, scooting, taxis, buses, trains. Sounds reasonable enough to me.
9.14.2009 8:44pm
SuperSkeptic:
For example, suppose I refuse a search on the basis that I think the law is unconstitutional and want to make a point. The officer then gets a warrant and drives me to a hospital to get a blood test. The blood test comes up negative. Still Constitutional to suspend my license?


Yes. Again, this isn't a criminal penalty just because it's punitive.


So you are suspected of a crime, oppose it, in response a warrant is acquired (the hypo never addressed PC-so here we are going on zilch), your blood is taken against your will, you are adjudged innocent of the crime and released, and then your permission to engage in the "liberty" but not "fundamental" activity of moving around in life as you were before lawfully is restored. And this is acceptable because it is merely punitive, not criminal? (emphasis added).

conditions are increasingly imposed on criminals today, as a modern alternative to expensive, "hard-time" too
9.14.2009 8:59pm
ShelbyC:

Asked and answered only 2 posts up!


Thanks, ya make it easy :-).

But I'm still not sure I see the difference. Cars increase the risk of drug traffiking just like they increase the risk of DUI accidents. It seems there's an equal nexus between the two.
9.14.2009 9:05pm
Dilan Esper (mail) (www):
If by "lie" you mean "bullshit" then I'm with you. Otherwise, implied consent is statutory. It exists. Read the case.

I know it's in the statute, but it isn't a justification for a search under the Fourth Amendment.

In other words, DMV's could have you sign the toughest implied consent language imaginable, and states could authorize it by statute, but if the search doesn't fit within the special needs doctrine, it isn't allowed despite all the implied consent forms.

Similarly, a state can not bother to pass an implied consent law at all, and the DMV can decide not to have you sign anything, but if the state wants to do special needs searches for DUI, it can do them.

"Implied consent" adds nothing to the analysis, because implied consent, under the Fourth Amendment, is no consent at all. So it is quite aggravating that DMV's continue to insist that you sign away your rights when you get a driver's license. I suspect this attitude is one of the causes of the surly customer service that you get at a lot of DMV's.
9.14.2009 9:05pm
pintler:

Like the plaintiff in Miller, Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him.


Not arguing the settled law, but I would love to get a time machine and find George Washington or Thomas Jefferson trying to board a canal boat or whatever and getting told to take off their shoes etc. Methinks we'd have an additional amendment.
9.14.2009 9:42pm
Oren:

So you are suspected of a crime, oppose it ...

Again, you conflate civil requirements with criminal requirements. It is not a crime to refuse a sobriety test.

It is a requirement for the privilege of operating deadly machinery on public property.


and then your permission to engage in the "liberty" but not "fundamental" activity of moving around in life as you were before lawfully is restored.

(1) Driving a car and "moving around" are not coterminous. You have every right to move around and I've actually cited precedent to that effect.

You do not, however, have the right to chose any conveyance method you please.

(2) I used to have the liberty to set off DOT-C fireworks. Then the law changed and now I don't. Happens all the time. No one would suggest that I have the right to proceed "as I was before".


Cars increase the risk of drug traffiking just like they increase the risk of DUI accidents. It seems there's an equal nexus between the two.

This misunderstands the "essential nexus" standard. The condition must be essentially related to the benefit. Driving a car is not essential to drug trafficking.
9.14.2009 10:21pm
Oren:
Dilan,

It was my understanding that the important function of "implied consent" is not the power to search (and have the evidence of that search admitted at trial) but rather as a premise for an administrative violation that triggers on refusal.
9.14.2009 10:24pm
SC Public Defender:
@ Oren

I was just trying to interject a little humor along with the idea that, in this situation, a magistrate provides little or no protection to the driver since they will all have "the strong odor of alcohol", "blood shot eyes", or "erratic driving" when the facts are recited to the magistrate whether or not that truly is the case (or rather, that those things are indicative of many things besides driving while impaired.)

I like most of my magistrates and think they do a good job for the most part. I have no problem with how they are appointed and, in fact was offered a job as one a couple of years ago. I should remember that sarcasm doesn't type well.
9.14.2009 11:00pm
Ryan Waxx (mail):
Walking, biking, scooting, taxis, buses, trains. Sounds reasonable enough to me.



Obviously you've never stepped outside of a city or dense suburb to be able to make that statement with a straight face.
9.14.2009 11:09pm
jccamp (mail):
In many states (most? some? beats me), there exist similar provisions for persons suspected of physical incapacitation, loss of eyesight and similar to be re-tested. Failure to submit to a re-test, which could include an eye test and a driving test, results in an automatic suspension. Is this any different than implied consent for BAC? There is the same government interest in removing unsafe drivers from public roadways. Of course, a test result indicative of say, blindness, is not evidence for use in a criminal court, but that's a choice you get to make when offered a BAC test. The government still has the ability to sanction licensed drivers who fail to comply with tests to determine their ability to safely operate a motor vehicle.

Oren's point is perfectly valid, and in fact, settled law.
9.14.2009 11:12pm
Oren:
SCPD,

Sorry to misinterpret. In one of the last threads, there was some scathing remarks about the integrity of the USMJs, maybe I transferred it over to you.
9.14.2009 11:55pm
Oren:

Obviously you've never stepped outside of a city or dense suburb to be able to make that statement with a straight face.

Your convenience is not a constitutional mandate.
9.14.2009 11:55pm
einhverfr (mail) (www):
jccamp:

If Oren's view is well-settled law, then perhaps you can point me to cases which allow for suspension of license for witholding consent alone even if the individual was vindicated of driving under the influence. I can't find any.

I suspect that this is for a number of reasons:
1) If you vindicate yourself (get driven to a hospital, get a legally admissible test, complain to the government), they might reinstate your license anyway to avoid a challenge.

2) If you refuse to allow a search, and a warrant is ordered, and the test comes up over-limit, then you can't argue probable cause and your license is already suspended so it is moot if the suspensions are run concurrently.

3) If the consent was made but argued to be under durress, the court can just consider the Shmerber exception and suggest that consent wasn't needed anyway.

You this is a lot of the sort of antics we saw with the assault weapons ban-- avoid Constitutional challenges by ensuring that anyone you charge has trouble obtaining standing to make such a challenge.

In short I don't think this is settled law at all. Instead I think that it is largely a matter of laws which are on the books which are Constitutionally questionable in principle, but are very hard to challenge as they are applied.

If it were settled law, I would think a quick search would show cases where this was decided.
9.15.2009 12:09am
Mark Buehner:
I'm confused, I was under the impression that a warrant is redundant. If there is probable cause the police can have blood drawn without a warrant via Schmerber v. California right?
9.15.2009 12:28am
Oren:

If Oren's view is well-settled law, then perhaps you can point me to cases which allow for suspension of license for witholding consent alone even if the individual was vindicated of driving under the influence. I can't find any.

The reason is that as soon as you refuse consent, that's the end of the game. You are arrest for the underlying driving infraction (per Atwater v. City of Lago Vista) and by the time you are bailed out, your license is suspended for a good long time. At least that's how they roll in IL.


Instead I think that it is largely a matter of laws which are on the books which are Constitutionally questionable in principle, but are very hard to challenge as they are applied.

The statute gets a presumption of constitutionality and the burden is on those attacking the statute. See, e.g. (and it's really everywhere) Ogden v. Saunders:

It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.
9.15.2009 12:36am
Oren:

I'm confused, I was under the impression that a warrant is redundant. If there is probable cause the police can have blood drawn without a warrant via Schmerber v. California right?

Schmerber was already in the hospital after an accident. Forcing a healthy individual to go to the hospital and get blood drawn without a warrant is not really apt.
9.15.2009 12:39am
Mark Buehner:

Schmerber was already in the hospital after an accident. Forcing a healthy individual to go to the hospital and get blood drawn without a warrant is not really apt.


What difference does the suspects location make according to the logic of Schmerber?

According to the NYT article cited above, police are skipping the middle man and taking the blood themselves.

Once they are back on patrol in Nampa, in southwestern Idaho, they will draw blood from any suspected drunken driver who refuses a breath test. They will use force if necessary, including getting help from another officer to pin down a suspect, Ms. Watson said.
9.15.2009 12:52am
Oren:
Mark,

Arizona says no but Utah says yes. I'm not aware of any Federal caselaw on point.

At any rate, I wouldn't advise a police office to hold down a suspect and draw his blood without a warrant.
9.15.2009 1:03am
Oren:
^^ I should amend that, I wouldn't advise it unless there is already precedent. No reason to be the first to try out a new theory.

The 9CA is apparently OK with it, so long as it doesn't "shock the conscience".
9.15.2009 1:08am
Oren:
Whoops, wrong link. I had that opinion opened in another tab. That's a good example of what the 9CA will not tolerate!

Here's the right one for the 9CA.
9.15.2009 1:12am
Dilan Esper (mail) (www):
It was my understanding that the important function of "implied consent" is not the power to search (and have the evidence of that search admitted at trial) but rather as a premise for an administrative violation that triggers on refusal.

It is perfectly constitutional to simply impose an administrative punishment for refusing a test. In contrast, it is actually NOT constitutional (a due process violation) to impose a blanket consent to a violation of one's rights in advance.

"Implied consent" is PSYCHOLOGICAL. It is about ingraining in drivers the idea that they have signed away their rights. It has the same impact as a business making you sign an unenforceable liability waiver-- it may be legally meaningless, but it ingrains in you that you can't sue them.
9.15.2009 1:18am
Mark Buehner:
The government's need for the blood is, of course, critical:

Heh.
9.15.2009 1:32am
Oren:
Dilan -- that's what I thought. Thanks.
9.15.2009 2:43am
Cleanville Tziabatz:
Forget telephonic warrants. This is the 21st century. The magistrate should get audio/video of the roadside tests and/or refusal and should be the decider in a meaningful sense instead of routinely punting the decision to the on-scene policeman (and his career ambitions).

It is ridiculous that a new technology, like cars, can be used to undercut the values underlying the Fourth Amendment, while a new technology, like streaming video is not required to be used to minimize the undercutting.

Too many Orin Kerr types out there, I guess.

PS: I have only been in a car stopped for drunk driving once. The driver (not me) blew 0.00 at the stationhouse withing half an hour of the consentual trip to the Intoxilyzer. Police don't care who has been drinking and who hasn't. They just fish. The officer who made the stop didn't even want to drive my friend back to the car. I guess he should have been grateful it was not impounded.
9.15.2009 8:13am
Mark Buehner:
Why are people attacking Orin for accurately explaining the case law? He didn't write it. Don't shoot the messenger.

It would be great if the SCOTUS took another look at this issue (and the 9th weighing in is always a happy indication that it may be overturned), although the dissenters in the Schmerber case had more problems on 5th Amendment grounds.

Justice Warren's dissent in Breithaupt V Abram is a perfect refutation of the "shock the conscience" type arguments.

"To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law enforcement officers, in their efforts to obtain evidence from persons suspected of crime, must stop short of bruising the body, breaking skin, puncturing tissue, or extracting body fluids, whether they contemplate doing it by force or by stealth."

Too bad so few justices hold the virtue of intellectual coherence in very high regard. Once you open the Pandora's Box of this balancing act, who knows where it takes us? If a citizens body is not sacrosanct (outside of judicial order), nothing is.
9.15.2009 10:12am
einhverfr (mail) (www):
Oren

The reason is that as soon as you refuse consent, that's the end of the game. You are arrest for the underlying driving infraction (per Atwater v. City of Lago Vista) and by the time you are bailed out, your license is suspended for a good long time. At least that's how they roll in IL.


Atwater v. City of Logo Vista turned around a couple points:

1) Seatbelt violations in Texas are criminal rather than civil (they are misdemeanors).
2) In Texas, police have broad powers to arrest individuals for misdemeanors.

This isn't the same thing as saying you are penalized for refusing to conent to a search. Now, I could understand the logic of "well, the individual didn't consent to a search so this will go to trial. In the mean time, let's suspend the license until the trial." But this isn't the way the statutes work.

Of course of the officer thinks you are driving drunk, he can arrest you, even in the absence of a precedent like Atwater. After all, DUI's are usually punishable by time in jail unlike seatbelt violations in Texas.

So I have absolutely no idea what Atwater has to do with anything.
9.15.2009 11:06am
einhverfr (mail) (www):
Cleanville:

Forget telephonic warrants. This is the 21st century. The magistrate should get audio/video of the roadside tests and/or refusal and should be the decider in a meaningful sense instead of routinely punting the decision to the on-scene policeman (and his career ambitions).

It is ridiculous that a new technology, like cars, can be used to undercut the values underlying the Fourth Amendment, while a new technology, like streaming video is not required to be used to minimize the undercutting.


Well, a major part of the problem is that our system is not set up to take a forward-looking approach to the 4th Amendment. Courts can't issue a mandate, give police time to comply, etc. Instead they could issue a mandate and give other cases a right to challenge on that basis. Thus it is very difficult to justify strengthening the 4th Amendment through the courts.

What we really need is an "Office of Civil Liberties" inside the Department of Justice whose job it would be to address this sort of thing. Until then the courts are somewhat helpless on this matter.
9.15.2009 11:16am
ShelbyC:
All of these 4A problems stem from the fact that the govt is trying to regulate the content of people's blood. Maybe we should take a different approach.
9.15.2009 12:36pm
whit:

At any rate, I wouldn't advise a police office to hold down a suspect and draw his blood without a warrant


this is routinely done in WA state under a # of statutes

there are a # of situations where we can (and do ) draw blood against the will of the suspect, and w./o a warrant.

but i'll take your advisement under advisement .
9.15.2009 1:53pm
Oren:
whit, I amended that advisement. If there is good caselaw from the WASC, go right ahead.

Also, since you are in the 9CA, try not to shock the conscience of the court. :-)
9.15.2009 1:59pm
Oren:

Now, I could understand the logic of "well, the individual didn't consent to a search so this will go to trial. In the mean time, let's suspend the license until the trial." But this isn't the way the statutes work.

That is precisely how the statute works in IL and MA. As soon as you refuse the test, your license is suspended.
9.15.2009 2:09pm
einhverfr (mail) (www):
Oren:


That is precisely how the statute works in IL and MA. As soon as you refuse the test, your license is suspended.


No, you misunderstand my point.

I woudl be fine with "well, he is out on bail but until the trial the license is suspended."

I am not fine with "the license is suspended for a year regardless of whether a crime (DUI, being punishable by jail time, is a crime) was committed."
9.15.2009 2:13pm
Cleanville Tziabatz:

Well, a major part of the problem is that our system is not set up to take a forward-looking approach to the 4th Amendment. Courts can't issue a mandate, give police time to comply, etc. Instead they could issue a mandate and give other cases a right to challenge on that basis. Thus it is very difficult to justify strengthening the 4th Amendment through the courts.


As Judge Kozinski, pointed out last week, the magistrate can refuse to sign the warrant. A good magistrate should tell the officer seeking the warrant: "your car has a camera. send the vid to my secure e-room. Don't want to send the video to me? Sounds like you are not confident about your pc. Warrant denied."

Also, there is a duty on the part of police to disclose material information cutting against the existence of pc. Courts should starting treating a failure to provide video as a failure of that existing duty of disclosure.

Courts already have all the power they need to fix the problem. They are just unwilling to take on the responsibility which is supposed to be theirs.
9.15.2009 3:06pm
whit:

whit, I amended that advisement. If there is good caselaw from the WASC, go right ahead.

Also, since you are in the 9CA, try not to shock the conscience of the court. :-)


i don't have the resources to research the case law. i'll cite one of the statutes though. i've done this before fwiw, in other word it's not just theory. this is a relatively routine practice.

here's one example.

person is under arrest for MV assault AND there are serious bodily injuries to another party in the collision.

" a breath or blood test may be administered without the consent of the individual so arrested"

read (3)

RCW 46.20.308
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood.

(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. However, in those instances where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample or where the person is being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility or where the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(5). The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:

(a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and

(b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and

(c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if the driver is age twenty-one or over and the test indicates the alcohol concentration of the driver's breath or blood is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of the driver's breath or blood is 0.02 or more, or if the driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504.

(3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested.
9.15.2009 3:09pm
Mark Buehner:

I am not fine with "the license is suspended for a year regardless of whether a crime (DUI, being punishable by jail time, is a crime) was committed."

The suspension has nothing to do with the crime. The suspension is an administrative punishment for refusing what is essentially safety test. If I refused to take my drivers test, my license would be suspended as well.
9.15.2009 3:39pm
Oren:

I am not fine with "the license is suspended for a year regardless of whether a crime (DUI, being punishable by jail time, is a crime) was committed."

How about "The People chose to revoke their invitation for the person in question to operate on our roads due to substantial non-compliance with regulations of compelling necessity"?

Whit, damn! The WA Supreme Court has okayed the law, so, like I said, if you don't shock the conscience of the 9CA you are in the clear.


All of these 4A problems stem from the fact that the govt is trying to regulate the content of people's blood. Maybe we should take a different approach.

Care to suggest one?

I'm going to assume that we all agree on the factual matter that driving a motor vehicle while impaired poses a significant risk of grave injury to fellow citizens.

So how do we solve this problem? What do we do about the citizen that, after the 6th DUI conviction, continues to drive drunk and recklessly endanger the lives of others?

PS. No, monetary damages after-the-fact are not a solution. A single crash can easily total $4 million in damages per person ($500k immediate medical care, $1.5 million in lifetime medical and $2 million in lost wages ($50k x 40 years). Add in multiple injuries and you are talking really stratospheric numbers.

There is no generally good economic solution for a situation in which an individual can incur a liability many times his total (lifetime!) ability to repay them.
9.15.2009 3:44pm
einhverfr (mail) (www):
Oren:


How about "The People chose to revoke their invitation for the person in question to operate on our roads due to substantial non-compliance with regulations of compelling necessity"?

Whit, damn! The WA Supreme Court has okayed the law, so, like I said, if you don't shock the conscience of the 9CA you are in the clear.


As long as I have the option of keeping a horse on my city property for alternative transportation, I have no problem with that.
9.15.2009 3:59pm
whit:
oren, i've been known to shock the conscience... but i save that for my off-duty exploits.

(currently "enjoying" a few months on disability due to sports injury. thank god for my union and their insurance!)
9.15.2009 4:09pm
Mark Buehner:

So how do we solve this problem?

Warrants. The same way we've handled them for 200 odd years.

If this were purely a question of whether the police should have to jump through a few extra hoops in respect to the 4th amendment, no way this practice stands up. But because it involved waking up a judge in the middle of the night to look at a cell phone video of a drunk stumbling through a sobriety test, we end up with the 'shifting sands' of whether being held down and jabbed in the arm with a strange syringe by a cop on a dirty roadside offends a citizens personal dignity, much less privacy.

Technology has rendered this a question of convenience to the police and magistrates. It deeply offends my sensibilities that that inconvenience overrides something as fundamental as the security of our own bodies.
9.15.2009 4:16pm
einhverfr (mail) (www):
(My point is that many cities ban keeping of horses within city limits, and engage in policies which make us very dependant on automobiles. I don't think that it is reasonable to ask one to give up such of an important element to personal autonomy or give up a Constitutional right.

Also, I live in a small town and the nearest taxi cab company is 40 miles or further away. Since public transit isn't an option, this makes it an equivalent to house arrest. This sort of curtailment on liberty shouldn't be possible in the absence of a conviction for a CRIME.
9.15.2009 4:19pm
Mark Buehner:

This sort of curtailment on liberty shouldn't be possible in the absence of a conviction for a CRIME.

So if you refuse to take you drivers test, your license shouldn't be rescinded?
9.15.2009 4:22pm
ShelbyC:

The suspension is an administrative punishment for refusing what is essentially safety test.


It is not a saftey test, it is an effort to gather evidence that you committed a crime.



So if you refuse to take you drivers test, your license shouldn't be rescinded?


Only if the driver's test involves an intrusive search of your body.
9.15.2009 4:33pm
pintler:

All of these 4A problems stem from the fact that the govt is trying to regulate the content of people's blood. Maybe we should take a different approach.


Care to suggest one?


For the sake of discussion:
Proposal 1: eliminate DUI as a crime. If you drive drunk and make it home OK, fine. If your drunken driving injures someone, treat just as you would if a gun was used instead of a car.

I'm halfway serious - we tolerate people driving 'tipsy', 'a little buzzed', etc. Try showing up at the local range for a little target practice after a few drinks, and you'll get roughly the same reception as a child molester. Somehow, most of society has gotten that guns-n-booze don't mix at all, but we don't seem to get it for cars.

Proposal 2: I like the videos suggested by prior posters. Didn't we start BAC testing because without it at trial the officer testifies that Joe was sloppy drunk, and Joe, now in a suit and solemnly swears he was just fine? If video of you at the time counting backwards and so on doesn't reveal impairment, how bad off can you really be? So just use the video and toss the BAC tests.
9.15.2009 4:51pm
Oren:

As long as I have the option of keeping a horse on my city property for alternative transportation, I have no problem with that.

In many cities, you do. :-P
9.15.2009 5:37pm
Oren:

It is not a saftey test, it is an effort to gather evidence that you committed a crime.

It's both. Clearly operating a motor vehicle while impaired is a major safety concern, probably on par with driving without the requisite knowledge or sufficient eyesight.


Only if the driver's test involves an intrusive search of your body.

Blowing into a tube is hardly intrusive. Blood tests are only required when the driver refuses the less intrusive test.


Proposal 1: eliminate DUI as a crime. If you drive drunk and make it home OK, fine. If your drunken driving injures someone, treat just as you would if a gun was used instead of a car.

The problem is that you can easily incur a liability (in the millions of dollars) much in excess of your ability to pay. There is no good economic solution for such a situation.


Proposal 2: I like the videos suggested by prior posters. Didn't we start BAC testing because without it at trial the officer testifies that Joe was sloppy drunk, and Joe, now in a suit and solemnly swears he was just fine? If video of you at the time counting backwards and so on doesn't reveal impairment, how bad off can you really be? So just use the video and toss the BAC tests.

(1) You can legally refuse field sobriety tests without penalty.

(2) Juries like to see real forensic evidence (blame CSI).

(3) If that evidence is enough for a reasonable jury to convict then surely it's enough to issue a search warrant. You can even give the perp a choice between breath or blood, only drawing if he refuses to comply.
9.15.2009 5:48pm
ShelbyC:

As long as I have the option of keeping a horse on my city property for alternative transportation, I have no problem with that.


Actually, I wonder what happens if you are riding a horse or a power mower or a bicycle (all of which are subject to DUI laws, I believe) and you refuse a breath test. Do you lose your license? Or if you're sitting next to your car in your driveway with your keys in your pocket?
9.15.2009 5:54pm
einhverfr (mail) (www):
Pintler:

Proposal 2: I like the videos suggested by prior posters. Didn't we start BAC testing because without it at trial the officer testifies that Joe was sloppy drunk, and Joe, now in a suit and solemnly swears he was just fine? If video of you at the time counting backwards and so on doesn't reveal impairment, how bad off can you really be? So just use the video and toss the BAC tests.


There are a couple problems with this. The first is that, while field sobriety tests are indicative of being drunk, they aren't dipositive. There are also other noncriminal things that might impair one's ability to operate a motor vehicle as well depending on state and jurisdiction. Some of these could conceivably represent rare conditions which require immediate attention but are unlikely to repeat with any regularity (insulin shock comes to mind, as might certain rare types of migraine headaches).

Finally, there are cases where someone is charged because of failing a field sobriety test and then provides a good reason ("well of course I swayed! You would too if you were wearing the high heels!").

In short failing a field sobriety test really doesn't mean much regarding how much alcohol one has had to drink. It is useful as a screening measure, but does not prove anything beyond a reasonable doubt.

IMO, the proper solution is to stop the BS about suspending licenses for failure to consent to a search. The proper solution is for the officer to say "would you mind consenting to a breath test? If you don't I will have to apply for a warrant for a blood test and we can sit here for the half an hour that takes. Of course we do calculate back to the time I stopped you for purposes of alcohol limits."

I would expect that if that were the choice folks were given, consent rates would go up, and the constitutional questions would go down.
9.15.2009 6:55pm
einhverfr (mail) (www):
ShelbyC:

Actually, I wonder what happens if you are riding a horse or a power mower or a bicycle (all of which are subject to DUI laws, I believe) and you refuse a breath test.


One better. Suppose you don't have a driver's license? After all riding a bicycle or a horse doesnt require DMV permission....

Oren:

Most zoning ordinances I can find require at 1-2 acres of land in city residential areas to keep a horse. NYC is an exception. So in most places I can quickly find, it is not possible to keep horses on average city lots.
9.15.2009 7:04pm
Mark Buehner:

Blowing into a tube is hardly intrusive. Blood tests are only required when the driver refuses the less intrusive test.

The lash is only required if the witness refuses to confess.
9.15.2009 8:38pm
ShelbyC:
And one other thing: suspending your drivers license doesn't just eliminate your right to drive on public roads, but anywhere, even your own property.
9.15.2009 8:49pm
Oren:
Mark, surely the submission to a warrant signed by a neutral magistrate under the authority granted by the duly-elected legislature is comparable to to the inquisition.

I'm shocked that i didn't see the analogy myself.

[ PS. As a serious matter, do you think that citizens have the right to refuse to comply with a search warrant? ]
9.15.2009 10:31pm
whit:

There are a couple problems with this. The first is that, while field sobriety tests are indicative of being drunk, they aren't dipositive. There are also other noncriminal things that might impair one's ability to operate a motor vehicle as well depending on state and jurisdiction.


1) field sobriety tests are not designed to determine DRUNK. not even close. the standard is impaired. i have testified as an expert witness on this stuff, fwiw. 4 cues of nystagmus alone is a sufficient # of cues (amongst all 3 maneuvers) to qualify as PC. but it definitely does not mean you are drunk (necessarily). people are still in this drunk mindset. that's old skool. the standard is "impaired" which is a MUCH lower standard.

2) as part of the NHTSA standardized battery, we ask questions about these other conditions. are you ill, are you under a doctor's care for any conditions, have you had a head injury recently, are you using any medications, prescription or otherwise, etc.

DUI is about the only crime where the INNOCENT have a foolproof way of proving it. the BAC. it doesn't lie. my state has a two prong test EITHER impaired OR a .08 is presumed impaired. it's that simple.

also, nystagmus is incrediblty accurate. i have NEVER had somebody give 6 cues of nystagmus and not be at least a .10.

ever.

the judge can't see nystagmus on a video (this whole show the video to the judge for a warrant thang).
9.15.2009 10:38pm
jccamp (mail):
Einverfr -

"If Oren's view is well-settled law, then perhaps you can point me to cases which allow for suspension of license for witholding consent alone even if the individual was vindicated of driving under the influence. I can't find any. "

Actually, this happens every day, everywhere. A DUI is stopped, refuses the test, has his license suspended, and then either pleads down to a lesser or is acquitted of the DUI because the state has no BAC, only the testimony of the officer. The suspensions stands. If you can't find any case law, it might be because no one bothers appealing a loser. I'd suggest the burden is on you to find case law showing such mandatory suspensions are lifted or somehow ameliorated because the original DUi charge was dismissed as a plea bargain or resulted in an acquittal. But you won't find it, I do not think. The suspension is completely independent of the criminal case, as it should be. The suspension is for refusal to test, not for DUI.
9.15.2009 11:05pm
Mark Buehner:

Mark, surely the submission to a warrant signed by a neutral magistrate under the authority granted by the duly-elected legislature is comparable to to the inquisition.

I'm shocked that i didn't see the analogy myself.

[ PS. As a serious matter, do you think that citizens have the right to refuse to comply with a search warrant?


Sorry for the confusion Oren, I am absolutely satisfied with compelling blood to be drawn with a valid warrant.

I am absolutely opposed to (physically) compelling any sort of testing without one, exigent circumstances or no.
9.15.2009 11:15pm
whit:


Actually, this happens every day, everywhere. A DUI is stopped, refuses the test, has his license suspended, and then either pleads down to a lesser or is acquitted of the DUI because the state has no BAC, only the testimony of the officer. The suspensions stands. If you can't find any case law, it might be because no one bothers appealing a loser. I'd suggest the burden is on you to find case law showing such mandatory suspensions are lifted or somehow ameliorated because the original DUi charge was dismissed as a plea bargain or resulted in an acquittal. But you won't find it, I do not think. The suspension is completely independent of the criminal case, as it should be. The suspension is for refusal to test, not for DUI.


this is entirely correct. i don't have any CITES, so to speak for him, but i've personally seen it. i've arrested people who have had a license suspended for "refusing the test" (that's what it says in the DOL return for the reason) and they have no DUI convictions. that's easily verifiable via my court computers, but i can't "cite that".

ask any DUI defense attorney. he'll tell you.

what i tell recruits investigation DUI's is that they are unique. they are one case, but two prongs - civil and criminal. much of the paperwork we fill out on DUI's has to do with administrative process, so DOL can suspend their license for a refusal (or if they blow .08 or above).

drivers can appeal for a hearing for their "administrative suspension". what must be proved by a preponderanc of the evidence is

1) that the officer has valid cause to make the traffic stop (reasonable suspicion of a crime or traffic offense)
2) that the officer had probable cause to arrest for DUI
3) that the driver was read his admin rights (these explain the consequences of refusal, etc.)
4) that the driver did in fact refuse

that's all. even if it turns out the guy was stone cold sober, that's irrelevant (alhtough why would a sober person refuse to blow, but i digress). what matters was that those factors were present.
9.15.2009 11:37pm
einhverfr (mail) (www):
whit:

If the choice wasn't between having one's license suspended or taking the breath test, but instead between taking hte breath test or waiting for a telephonic warrant for a blood test to come through, don't you think the refusal rate would go down dramatically? It would seem to me to remove Constitutional questions and so forth.

However, beyond this-- the Constitutional concerns I have on this issue are that it more or less attempts to remove the 4th Amendment from basic search scenarios.

jccamp:

If you can't find any case law, it might be because no one bothers appealing a loser.


More likely because this involves:
1) Spending years suing the government and spending lots of money in legal fees you can't get back.
2) By the time the court might side with you, you have your license back. Then you have to argue that the issue isn't moot because it will happen again.

The fact is that nobody in their rational mind, for any reason other than patriotic loyalty to the Constitution would challenge such a law in court. There is no practical gain to be had. But that doesn't mean it is a matter of settled law either.
9.16.2009 12:24am
Oren:

4 cues of nystagmus alone is a sufficient # of cues (amongst all 3 maneuvers) to qualify as PC.

Interestingly, the MA courts have recently thrown out nystagmus for lack of scientific backing under our version of Daubert. They have invited the State to provide expert testimony demonstrating its reliability and the State has, so far, declined.

[ I have no idea whether nystagmus is scientifically valid or not and don't take a position on that matter. ]


DUI is about the only crime where the INNOCENT have a foolproof way of proving it. the BAC. it doesn't lie. my state has a two prong test EITHER impaired OR a .08 is presumed impaired. it's that simple.

Whit, I respect you a lot, but jesus christ this isn't even nearly true. I known plenty of people that have blown <0.08 and were still charged with DUI under the second prong.

There is no way to "prove" your innocence against those charges because it's entirely subjective.
9.16.2009 12:33am
Oren:

More likely because this involves:
1) Spending years suing the government and spending lots of money in legal fees you can't get back.
2) By the time the court might side with you, you have your license back. Then you have to argue that the issue isn't moot because it will happen again.

Under your reasoning, the administrative scheme is facially invalid. No need to find a defendant or wait for an as-applied challenge. No mootness.


But that doesn't mean it is a matter of settled law either.

(John Walsh Voice) Every statute is constitutional until proven otherwise, in a court of law.
9.16.2009 12:37am
Cleanville Tziabatz:

. . . (alhtough why would a sober person refuse to blow, but i digress) . . .


Fear of a rigged or broken machine.
9.16.2009 7:54am
Cleanville Tziabatz:

also, nystagmus is incrediblty accurate. i have NEVER had somebody give 6 cues of nystagmus and not be at least a .10.


Because you only see the six cues when you know the person is drunk for other reasons.

Of course, if the nystagmus test is scientific, then there should be a double blind test (where the officer is screened for the odor of the person's breath). Actually such a test should be part of the certification for every officer who does the technique. Ten people behind the glass -- one at 0.10% -- choose correctly or lose. Can't re-test for two years. That is how it should be.

I am confident: (i) you (Whit) would say that you think you would ace such a double blind test; and (ii) you would never agree to perform such a test. Typical popo.
9.16.2009 8:01am
whit:

Fear of a rigged or broken machine.


which is absurd. and in my state (and the previous state i worked), one has the right to get a blood test taken by a physician of your choice. we will gladly drive a suspect to a hospital to get a blood draw of their own to get tested of their own accord.

and in my entire career, not a single person has asked for one.

any fear of the machine giving a false reading is completely baseless.
9.16.2009 9:01am
whit:

Because you only see the six cues when you know the person is drunk for other reasons.



absolutely false. what is your basis for this false statement? fwiw, i have had plenty of people give 4 cues nystagmus (which is PC to arrest) who show very few OTHER indicia of IMPAIRMENT (again, the fact that you use the word drunk does not speak well to your knowledge in this area), and a fair # give 6 cues.

i'll rely on nystagmus because i know (n=several hundred) it's obscenely accurate. period.

oh, but then i read the rest of your post, where you call me a "typical popo" and i realize you are just an uninformed troll.

with a .1 on the troll-o-meter, but thx for playin!
9.16.2009 9:04am
David Schwartz (mail):
In one controlled study of the nystagmus test, officers administered it correctly only 5% of the time. When correctly administered, it was accurate 77% of the time. Many states have ruled results of this test inadmissible.

One other problem, many things that can cause people to appear drunk without being drunk can also cause them to fail a nystagmus test. Drowsiness is an obvious example.
9.16.2009 9:29am
whit:
that's all well and good. i;m well aware of the stats, i am just saying what MY experience is. never did i see a reading of less than .10 with 6 cues.

i've made over 200 dui arrests.

that's a pretty decent sample.

6 cue nystagmus makes up about 50% of my DUI arrests.

4 cue nystagmus make up the arrest.

i've never arrested for DUI (dui alcohol that is) without 4 cues.

so, at least for me - it's that reliable

of course, such a sample can never speak to how many dui's i might MISS (iow the possibility that a person is a .08 or above but i did not recognize 4 cues OR 4 cues were not present) but in cases where arrest was made, reliability of 6 cues is 100% and 4 cues is well over 95%.

that's a lot more than "probable"

and of course, the innocent person has a foolproof way to prove their innocence. which makes DUI unique amongst crimes
9.16.2009 11:55am
ShelbyC:

In one controlled study of the nystagmus test, officers administered it correctly only 5% of the time. When correctly administered, it was accurate 77% of the time. Many states have ruled results of this test inadmissible.


Inadmissable as evidence in court, but still can be used as PC to make an arrest, correct?

and whit, as any reader of this blog knows, you're definately and atypical popo. :-).
9.16.2009 1:24pm
Cleanville Tziabatz:

Fear of a rigged or broken machine.



which is absurd. and in my state (and the previous state i worked), one has the right to get a blood test taken by a physician of your choice. we will gladly drive a suspect to a hospital to get a blood draw of their own to get tested of their own accord.


1. Why is it an absurd concern?

2. Many states already don't use and/or got rid of portables due to accuracy problems. Now some states are even getting rid of the bench test. You have no idea how accurate they are. Also, if a policeman has found a way to rig the result, he certainly isn't going to tell you, Whit. Same reason he is not going to tell you if he is planting evidence. He would consider that to be none of your business.

3. The catch with getting your own blood test is that the hospital will not do it for you when you get there. The typical hospital policy is that they do the BAC test only when ordered by the police.

4. You may well have arrested only drunk people for whatever reason. Maybe you personally err on the side of caution. All I know is my one experience where my designated (non-drug-using) driver was 0.00 and the policeman cuffed him up and hauled him in. In other words, police are batting 0 for 1 as far as my first hand experience. There are policemen out without integrity, and your attitude is a big reason that they continue to exist and to operate with impunity. Frankly, you may not have integrity. I don't necessarily believe your war stories here. They are self-serving. They may well be lies.
9.16.2009 2:55pm
whit:
shelby, whether or not nystagmus is admissible in court, even as PC is highly dependant on the state and their evidence standard, etc.

in my state (WA) i had to go through about a 5 minute voir dire before i could even testify to it. never had to do that in any other state.
9.16.2009 2:59pm
Cleanville Tziabatz:

In one controlled study of the nystagmus test, officers administered it correctly only 5% of the time. When correctly administered, it was accurate 77% of the time. Many states have ruled results of this test inadmissible.



Inadmissable as evidence in court, but still can be used as PC to make an arrest, correct?


No.

77% X 5% = 3.9%

3.9% < 50%

Ergo, it is not PC.
9.16.2009 3:02pm
Cleanville Tziabatz:

which is absurd. and in my state (and the previous state i worked), one has the right to get a blood test taken by a physician of your choice. we will gladly drive a suspect to a hospital to get a blood draw of their own to get tested of their own accord.

and in my entire career, not a single person has asked for one.


As I mentioned above, this option is typically illusory due to hospital policies.

However, just for grins, how were your arrestees made aware that they had this wonderful option? Did you explain it to them clearly and in painstaking detail, there, Whit?
9.16.2009 3:15pm
Oren:

which is absurd. and in my state (and the previous state i worked), one has the right to get a blood test taken by a physician of your choice.

Next time I'm pulled over on Whidby Island, I'm going to be asked to be tested by my physician in Spokane.
9.16.2009 4:27pm
Oren:
Grammar, bah.
9.16.2009 4:28pm
einhverfr (mail) (www):
Oren:


(John Walsh Voice) Every statute is constitutional until proven otherwise, in a court of law.


I don't know about you but when I hear "settled law" I think common law traditions, stare decisis, and all that jazz.

I don't think that questions which I cant find being settled by a higher court are in fact "settled law" especially when the only cases I can find looking at this issue punt it back to the lower court saying "abstension on this issue isn't appropriate."

It doesn't sound very settled to me.

But maybe you mean something different by "settled law."
9.16.2009 7:35pm
einhverfr (mail) (www):
Oren:

Under your reasoning, the administrative scheme is facially invalid. No need to find a defendant or wait for an as-applied challenge. No mootness.


Courts are not self-starting organizations for a reason. We don't want a government like that of Iran.

You are right that I think that administrative punishments for declining to consent to a search are facially unconstitutional. However, you still have to find a defendant because of standing requirements. This is important to our system of law.

Facial challenges can't be made by just anyone. They have to be made by individuals who have been HARMED by the policy. Given the time it takes the courts to work, though, you need a selfless individual who is willing to fight long after the license has been restored.

The further problem here is that declaratory judgement is inappropriate because there is no actual controversy until you are actually stopped. Unless you have a lawyer ready to file the paperwork as soon as you are asked to consent, you don't qualify.
9.16.2009 7:43pm
Cleanville Tziabatz:

field sobriety tests are not designed to determine DRUNK. not even close. the standard is impaired. i have testified as an expert witness on this stuff, fwiw. 4 cues of nystagmus alone is a sufficient # of cues (amongst all 3 maneuvers) to qualify as PC. but it definitely does not mean you are drunk (necessarily). people are still in this drunk mindset. that's old skool. the standard is "impaired" which is a MUCH lower standard.


It is also a meaningless and Constitutionally vague standard which is why non-popos (like Orin Kerr at the top of the thread) still use "drunk." Because that actually means something.
9.18.2009 8:38am

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