Re-examining Implied Consent after McNeely, Part III

The first two posts in this series (here and here) discussed opinions from state supreme courts in Arizona and Minnesota considering, post-McNeely v. Missouri, 133 S.Ct. 1552 (2013), whether a suspect’s submission to implied consent testing was voluntary consent within the meaning of the Fourth Amendment. This post discusses why that sort of analysis is unsatisfactory and describes other potential framework. Why consent doesn’t work. If consent is the justification for allowing testing under implied consent laws, then states may procure—upon threat of license revocation, use of the refusal as evidence, and, in some cases, criminal prosecution—a suspect’s acquiescence to a search that, were the person to refuse, would only be lawful if carried out pursuant to a warrant or if exigent circumstances existed. Though the Minnesota Supreme Court in State v. Brooks, __ N.W.2d __, 2013 WL 5731811 (Minn. October 23, 2013), attempted to distinguish Bumper v. North Carolina, 391 U.S. 543 (1968), Brooks’ analysis of consent doesn’t materially differ from that rejected by the Bumper court. In essence, Brooks reasons that the suspect consented to a search that would have been lawful with a warrant. The fiction of advance, implied consent (which both Brooks and State v. Butler, 302P.3d 609 (Ariz. 2013) (en banc) rejected) is even more problematic. If states can condition the privilege to drive on the relinquishment of constitutional rights, then why require reasonable suspicion for stops? Couldn’t drivers impliedly consent to stops by roving patrols regardless of Delaware v. Prouse, 440 U.S. 648 (1979)? Obviously, [...]