Courts across the country continue to wrestle with whether and how the Supreme Court’s opinion in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013), affects the lawfulness of testing carried out pursuant to a state’s implied consent laws. McNeely held, in the context of a blood draw performed over a defendant’s objection, that the natural dissipation of alcohol in a person’s bloodstream does not constitute an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. Post-McNeely, many defendants have challenged the constitutionality of testing carried out pursuant to implied consent statutes. Such statutes generally require that defendants charged with impaired driving offenses submit to breath or blood tests or else forfeit their driving privileges. Defendants have questioned whether such testing, which amounts to a search under the Fourth Amendment, may be routinely required without a warrant. A series of earlier posts about McNeely’s impact discussed opinions from state supreme courts in Arizona and Minnesota holding that, independent of the state’s implied consent law, the Fourth Amendment required an arrestee’s consent to be voluntary to justify a warrantless blood draw. Implied Consent Provisions Upheld While litigation over this issue continues at a furious pace, my research has not revealed a single appellate court opinion ruling unconstitutional a state’s implied consent laws. Among the statutory provisions that have been upheld are those that criminalize a suspect’s refusal to consent to a blood or breath test. See, e.g., State v. Bernard, 2014 WL 996945 (Minn. Ct. [...]
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