Re-examining Implied Consent After McNeely, Part I

The United States Supreme Court held last term in Missouri v. McNeeIy, 133 S. Ct. 1552 (2013), 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. McNeely’s holding comported with the analysis that the North Carolina Court of Appeals previously had applied to determine whether such a blood draw was constitutional, requiring consideration of the totality of the circumstances in a given case to determine whether the nonconsensual warrantless blood test of a drunk-driving suspect was reasonable. If one assumed that law enforcement officers were sufficiently versed in the law not to rely on dissipation alone, but to require additional facts before withdrawing blood over a suspect’s objection without a warrant, McNeely seemed unlikely to generate many additional motions to suppress blood test results in DWI trials in North Carolina. On the other hand, even though the plurality in McNeely appeared to equate implied consent with actual consent (see 133 S.Ct. at 1556, referring to consequences when a motorist “withdraws consent”), McNeely’s holding that there was no per se exigency in every impaired driving case authorizing the warrantless withdrawal of blood challenged one of the rationales relied upon as rendering lawful warrantless implied consent searches. Some courts had reasoned that searches carried out pursuant to implied consent statutes were lawful because they were searches that law enforcement officers could have compelled in any event without the need for consent or a warrant. [...]