By Maya Kushner, Esq. and Marc Emden, Esq.

Using a federal law known as the implied consent law, police are getting around the search warrant requirement by coercing suspects into consenting to a blood test when they are charged with violating DUI laws on federal property: something police may find to be faster and easier than obtaining a warrant. “Implied consent laws” state that you have already consented to the police taking a sample and conducting a chemical test of your breath, blood, or urine if you are arrested for suspected drunk driving, and every state in the U.S. has some form of this law on the books.

A medical worker drawing someone's blood for an alcohol testHere’s the situation: if you are arrested under the suspicion of driving while impaired (by drugs or alcohol), the police officer will read you an “implied consent” notice. The notice states that you have agreed to chemical testing simply by getting behind the wheel of a car. However, even though the notice states that you already consented to testing simply by driving, the police officer will ask you if you consent to the testing of your blood, breath, or urine there and then.

In a landmark case, Missouri v. McNeely in 2012, the Supreme Court held that a blood test is considered to be a “search” within the meaning of the 4th Amendment to the U.S. Constitution. Therefore, that in order to conduct a chemical test of a suspect’s blood, the police officer must first either obtain a search warrant or obtain the suspect’s consent (unless exigent circumstances are present). This same requirement likely applies to chemical testing of breath and urine, although the Supreme Court has not ruled on this question.

So what happens if you refuse to submit to chemical testing? All states, including Maryland, have some form of administrative punishment for refusing testing; for example in Maryland, a refusal means that your driving privileges will be suspended for 120 days to up to a year. But thirteen states, including Virginia, also impose criminal sanctions for your refusal. Maryland does not automatically impose criminal sanctions for a refusal, but if you refuse and are later convicted of a DWI, the court then has the option of imposing a separate criminal punishment for your refusal in addition to any sanctions due to the conviction, itself.

The imposition of criminal sanctions simply for refusing a test makes the choice of whether to consent not a choice at all. Instead, the threat of the police charging someone with a crime actually coerces that person to consent to take the test.

However, the Supreme Court has said that in order to satisfy the 4th Amendment, the consent to a search must be knowing and voluntary. Instead, the coercive nature of the threat of criminal sanctions for a refusal suggests that the consent is never truly voluntary. Criminal defense attorneys have been raising this issue in DUI cases all over the country, and it has finally made its way to the U.S. Supreme Court.

On April 20, 2016, the Supreme Court will hear arguments in three consolidated cases (collectively called Beylund); Emdenlaw will attend the hearing. We want to hear what the Court has to say about this interesting and important topic for our clients.