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McNeely and implied consent laws - Part II


Yesterday we talked about how an alert reader had tipped me off to the possible impact of the Supreme Court's recent decision in Missouri v. McNeely on Ohio's implied consent law.  That law provides that anyone who drives a car in this state impliedly consents to having their blood tested for alcohol.  That's a little simplistic; the cop still has to have a reasonable suspicion of criminal activity to stop you, and probable cause to believe you're drunk to have you submit to a blood test.  But if he gets there, according to the law, the police can drag you to a hospital and tie you to a gurney while the nurse draws your blood.

In McNeely, the Court affirmed its previous view that a blood draw was a search for 4th Amendment purposes, and rejected the State's argument that the metabolization of alcohol in the body creates an exigency which dispenses with the warrant requirement.  

So, where does that leave Ohio's implied consent law?  Dead in the water.  Although McNeely addressed implied consent laws only minimally, as we'll discuss in a minute, there's no other way to interpret the decision.  If having your blood drawn constitutes a 4th Amendment search, having you "implicitly" give up your 4th Amendment right not to submit to a warrantless blood draw whenever you get on the road would render McNeely a dead letter.  Plus, Missouri had an implied consent law substantively identical to Ohio's provision.  The state didn't even bother arguing that McNeely gave up his right to protest the warrantless blood draw by simply driving a car.

But the implied consent statute has other features:  if you refuse a test, your license is immediately suspended, it will remain suspended for a longer time, and penalties, including jail time, can be imposed (If you're convicted of second drunk driving and refuse  to a submit to a test, it's a mandatory twenty days in jail instead of ten.)  Does McNeely affect this, and if so, how? 

Let's start with the "how" first, because that's pretty easy to see.  You've got a constitutional right to refuse to submit to a blood test; how can the government be allowed to use your assertion of a constitutional right as evidence against you?  Couldn't you claim that the use of your refusal against you, coupled with the increased penalties for refusal, constitute duress which negates the validity of any consent? 

To be sure, these arguments have been made before; the Supreme Court rejected them in State v. HooverBut that rejection was based entirely on the pre-McNeely understanding that a warrantless blood test was permissible, and that a defendant "has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication."  McNeely says that's not true.

But let's get back to the "does."  The problem with these arguments is that they seem to be specifically rejected by McNeely; in her opinion Sotomayor counters the contention that requiring a warrant will "undermine the governmental interest in preventing and prosecuting drunk-driving offenses" by pointing to the fact that "all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense."  I think it's a tough sell to claim that McNeely eliminates the penalties imposed by implied consent laws when the opinion approvingly refers to laws imposing those penalties.  The saving grace here is that Sotomayor was speaking for only four members of the Court at this point; Kennedy, who provided the fifth vote, did not join it that part of the opinion.  Still, he wasn't "dissenting" from that portion of the opinion; he simply didn't agree with some of the other things she discussed in that portion.

What about breathalyzer tests?  We've limited the discussion here to blood tests, but of course the implied consent statute also covers any other chemical test, including breath tests.  The breathalyzer is by far the most common method of testing for alcohol consumption.  Can you make the same claim there -- that the police need a warrant, and that you have a constitutional right to refuse them? 

Don't push your luck, Sparky.  There's a big difference between blood draws and breath tests.  At oral argument in McNeely, Roberts questioned McNeely's lawyer as to whether a warrant was required for a breathalyzer, and the lawyer responded that it probably was.  This was too much for Scalia, who would eventually vote with the majority; he suggested that what was reasonable for "sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon."

What you need to know.  Forced warrantless blood draws are out, unless the police can show an exigency.  The implied consent law, to the extent that it permits that, is dead.  The question of whether penalties can be imposed for refusing to submit to a blood draw is up in the air.  There's no problem, though, with implied consent laws as they pertain to breath tests.

Warning!  Gory legal analysis!  There's an argument that McNeely isn't that big a deal.  It didn't really establish anything new; the fact that a blood draw had 4th Amendment implications was established in Schmerber, and was assumed in McNeely; the latter decision dealt only with the question of whether a warrant was needed.  That's the biggest handicap to extending McNeely beyond the proposition that the police will sometimes need to get a warrant to conduct a blood draw.  All the arguments mentioned above -- whether your refusal can be used against you, whether your "consent" is really valid, whether enhanced penalties can be implied for your failure to consent -- have been made over the years and consistently rejected. 

But you've got some openings here.  Sotomayor completely failed to grasp the implications of the logic of the decision on other aspects of implied consent laws.  As I mentioned, the key Ohio case here, the Supreme Court's decision in Hoover, was based on a notion which McNeely specifically rejects.  Your argument should be that McNeely wiped out Hoover and Ohio's other precedents on the issue, and we start from scratch.  There are some good arguments to be made here, and the biggest barrier to making them was that they'd been shot down before.  If you've got a case involving a blood draw, you need to take a hard look at McNeely


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