I’m eagerly awaiting the Supreme Court’s ruling in Missouri v. McNeely. I want to know whether the exigency created by the dissipation of alcohol in the body, without more, permits the police to compel the withdrawal of blood from an impaired driving suspect without a warrant. But there’s one thing I already know: The legal fiction of implied consent will play no part in the analysis. Indeed, the State made no argument that Missouri’s implied consent law, see Mo. Ann. Stat. § 577.020 (West), obviated the need for the Fourth Amendment analysis. And the justices’ probing questions regarding the State’s ability to forgo constitutional protections when it came to a procedure that intruded into the body demonstrated the likely futility of any assertion a state can avoid the Fourth Amendment analysis in a refusal case by enacting laws that imply or require consent to such a search. Yet, while state courts (including our own) rely on the Fourth Amendment requirements in analyzing the constitutionality of warrantless compelled blood draws, courts frequently rely on the legal fiction of implied consent as rendering lawful the obtaining of breath samples under threat of license revocation. See, e.g., Seders v. Powell, 298 N.C. 453, 462 (1979) (“[A]nyone who accepts the privilege of driving upon our highways has already consented to the use of the breathalyzer test and has no constitutional right to consult a lawyer to void that consent.). I don’t think the implied consent analysis holds up. Even though breath tests indisputably are less [...]
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