Saturday, January 24, 2015

Is California's Implied Consent Law Unconstitutional?

In California, anyone stopped for a DUI is told that they are obligated to give a blood or breath sample because they consented when they were issued a license.  This is the backdrop for a new attack on the coerced taking of blood and breath by the police says one well known DUI attorney.

Indeed,  iMissouri v. McNeely  133 S.Ct. 1552 (U.S. 2013) the Supreme Court of the United States held that nonconsensual, warrantless blood alcohol testing was presumptively unconstitutional.  California has enacted a set of statutes that compels a driver to waive his right to demand the production of a warrant issued by an independent judicial officer, by mandating that the driver consent to a search under the threat of incarceration. The California statute misinforms the driver of his constitutional rights by telling him that he “shall consent” to a search, when presumably, according to the Constitution,  the driver has the right to refuse.

It is well settled that statutes that threaten jail unless someone consents to a warrantless search of their house are unconstitutional on their face. Even more indisputable is the fact that a person’s body is entitled to equal or greater protections than would a person’s house under the Fourth Amendment.  As stated in Katz vUnited States, 389 U.S. 347, 351 (1967), “the Fourth Amendment protects people, not places.” There, the Supreme Court found a violation of the Fourth Amendment simply by the attachment of an eavesdropping device to a public telephone booth. Later cases applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person's “reasonable expectation of privacy,”.   These precepts have been recognized in many published cases.

In summary, an implied consent statute or legislative scheme that criminalizes a citizen’s refusal and thereby coerces consent is not a suitable replacement for the Constitutional dictates of a search warrant application and review by a detached and neutral magistrate.  Reeder v. State, (2014) 428 S.W.3rd 924.  Indeed, many DUI attorneys are now challenging blood tests on these grounds and some Courts have been receptive to the challenges.