Implied Consent Laws Can’t Provide End-Run around McNeely

The United States Supreme Court held in Missouri v. McNeely, 133 S. Ct. 1552 (2013), that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every impaired driving case that justifies a warrantless, nonconsensual blood draw. In so holding, the court rejected the state’s call for a categorical rule—based solely on the evanescent nature of alcohol—that would authorize warrantless blood draws over a defendant’s objection whenever an officer has probable cause to believe the defendant has been driving while impaired. Some states have continued to argue, however, that nonconsensual warrantless blood draws in impaired driving cases are categorically permissible based on implied consent laws enacted by their state legislatures. Two state supreme courts recently rejected such arguments, holding that implied consent statutes in Nevada and Idaho that do not allow a driver to withdraw consent to testing are unconstitutional. That reasoning might be applied to invalidate the provision of North Carolina’s implied consent law that categorically allows the warrantless testing of unconscious drivers. Byars v. State, 2014 WL 5305892, __ P.3d ___ (Nev. 2014). The defendant in Byars was stopped for speeding. The trooper who stopped Byars smelled marijuana, which Byars admitted to smoking five hours earlier. Byars was arrested for impaired driving. The officer read Byars his implied consent rights, told Byars that he would perform a blood test, and took him to the hospital for that purpose. Byars physically resisted the withdrawal of his blood, striking the trooper and an assisting sheriff’s deputy in [...]