A few weeks ago, I blogged about the offense of operating while impaired. One of the issues I raised in the post was whether telling a defendant that his or her refusal to submit to a breath test in such a case was admissible at trial amounted to coercion that rendered the consent involuntary. A reader and respected Fourth Amendment scholar wrote me to say that, in his view, the defendant’s consent in such cases was constitutionally unnecessary as an officer who suspected a defendant of operating while impaired could, based upon exigent circumstances, take a boater’s breath or blood sample, without a search warrant and without the necessity of consent. This argument is based on the premise that the dissipation of alcohol always creates an exigency sufficient to justify a warrantless search of a defendant who is suspected of operating or driving while impaired. See, e.g., State v. Netland, 762 N.W.2d 202 (Minn. 2009) (holding that the criminal test-refusal statute does not violate the Fourth Amendment “because under the exigency exception, no warrant is necessary to secure a blood-alcohol test where there is probable cause to suspect a crime in which chemical impairment is an element of the offense”). The contrary view is that while the dissipation of alcohol may create an exigency, it doesn’t automatically do so in every case. In order to establish that the search was conducted under this exception to the warrant requirement, the State must demonstrate some significant delay associated with the obtaining of a [...]
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