Fourth Amendment challenge to breath test refusal statute rejected by Appellate Court

Most drivers don’t realize that every state requires a driver suspected of drunk driving submit to a blood-alcohol test or face mandatory license suspension. This requirement is outlined in “implied-consent statutes.” Although the U.S. Supreme Court has partially addressed the constitutionality of these statutes, a recent defendant in Illinois unsuccessfully appealed with the state Appellate Court challenging the constitutionality of such statutes under the Fourth Amendment.

The Arrest
The case of the People of Illinois v. Gaede involved a defendant who was arrested for drunk driving associated with a hit-and-run incident. The defendant was operating a motorcycle when he was stopped by an officer responding to reports of a hit-and-run. After failing field sobriety tests, the defendant was arrested for an OUI and transported to the county jail where he was read his rights and warnings. The defendant then chose to refuse the required chemical breath test, and as a result, his license was immediately suspended. The jury found the defendant guilty of the OUI, and the defendant appealed.

Defendant’s Appeal
The defendant’s argument on appeal consisted of two attacks on the state’s implied consent statute:

1. First, a blood-alcohol test is an unreasonable search and seizure under the Fourth Amendment, and so requires that officers obtain a search warrant before measuring the blood alcohol content without the defendant’s consent; and
2. Since the state’s implied consent statute requires that defendants submit to blood alcohol or otherwise be penalized, the statute effectively violates the Fourth Amendment on its face since the defendant would punished for exercising his right to privacy in his body and its contents.

Court’s Response
The defendant’s argument that the implied consent statute is facially unconstitutional was rejected by the Appellate Court of Illinois for two main reasons:

1. The defendant does not have grounds to argue that the statute is facially unconstitutional under the Fourth Amendment since he not only was permitted to, but did in fact, withdraw his consent to the blood alcohol test; and
2. The state’s heavy interest in law enforcement and preserving public safety outweighs the defendant’s right to privacy under the Fourth Amendment, and so justifies the state’s intrusion under the implied consent statute.

With regard to the court’s first conclusion, the court found that the defendant was given an opportunity to refuse the blood alcohol test, and did choose to withdraw his consent to it after his arrest. As a result, no test was ever administered and so the defendant’s Fourth Amendment rights could not have been violated. And since a facial constitutional challenge against the statute requires that there be no possible way for the statute to not violate the Fourth Amendment, the defendant’s argument here fails.

The second conclusion relies heavily on earlier U.S. Supreme Court case law that addresses blood alcohol tests. Although the Supreme Court did previously conclude that a blood alcohol test is a “search” within the Fourth Amendment, that does not necessarily mean that it is always an “unreasonable search” requiring a warrant. Under the cases of Missouri v. McNeely (133 S.Ct. 1552 (2013)), Schmerber v. California (384 U.S. 757 (1966)), and Skinner v. Ry. Labor Executives’ Ass’n (489 U.S. 602 (1989)), a warrantless blood alcohol test is permissible if the delay in procuring a warrant would result in the destruction of evidence critical to the state’s interest in law enforcement. In an OUI context, the relevant evidence is the alcohol in the defendant’s body, which naturally dissipates to an unmeasurable size after a certain period of time, leaving the prosecution’s case without persuasive evidence. The test, under the Supreme Court cases requires that courts consider the totality of the circumstances.

Every state has adopted some form of the “implied consent” statute, requiring drivers to agree to submit to blood-alcohol tests as a condition of licensure. In Massachusetts, every driver agrees to this condition when he signs the paperwork at the RMV to receive his state license. If a driver refuses to consent, the RMV automatically imposes a license suspension, rendering the driver incapable of commuting to work until the case is favorably resolved. Mass. Gen. Laws ch. 90, § 24( I)( f)( I) (2007). Because OUI charges have such drastic consequences that immediately take effect, it is critical that a defendant critically retain an experienced defense attorney who will be able to persuade the prosecutor to reduce the penalties or otherwise obtain a “hardship” license for the defendant.