Following the lead of several other states, the Nevada Supreme Court ruled recently that the state’s “Implied Consent” law did not allow officers to conduct warrantless searches of the blood of drivers who did not consent to take breath or blood tests. A story with the details is here. The Nevada court followed the US Supreme Court case of Missouri v. McNeeley which held that warrantless blood draws of suspected DUI drivers were not constitutional under normal circumstances.
Under an “Implied Consent” law, a person is deemed to have consented to a breath, blood or urine test by the act of driving a car in that state. The reason that the government needs your consent is that a breath or blood test is a search. Searches in America require a warrant or one of the few exceptions to the warrant requirement. Consent is one of the exceptions. So, the states decided that you had to consent in order to get a driver’s license. The problem is (1) that was always a fiction: consent has to be knowing and voluntary and not coerced, and (2) consent must be revocable to be constitutional. So, even if you consent to the tests by driving, you have to be able to withdraw your consent in order for it to be constitutional. The “Implied Consent” laws are falling by the wayside because they don’t represent a legitimate consent, at all.
Kansas Implied Consent law states that by driving in Kansas you have consented to a DUI test. Kansas has also recently made it a crime to refuse a test. The constitutionality of the Refusal law is in front of the Kansas Supreme Court right now. The US Constitution grants Americans freedom from unreasonable searches. Warrantless searches are per se unreasonable. It should not be illegal to invoke a Constitutional right. If the police come to your house and say that they have probable cause to believe that you have something illegal inside of the house, and ask for your consent to enter the house, they cannot arrest you if you invoke your right to demand that they get a warrant. we don’t live in North Korea. So, the Kansas Supreme Court will be making a decision, much like the Nevada Supreme Court just had to make, about whether implied consent is Constitutional Fourth Amendment consent. If consent has to be voluntary, can’t be coerced, and can be withdrawn, then the Criminal Refusal of a Test statute should be struck down as unconstitutional.
I do believe that the Implied Consent scheme in Kansas will be determined to be constitutional with respect to administrative driver’s license suspensions in Kansas. In a Kansas DUI case, there are two separate cases: (1) the criminal case in which a person is charged with DUI and/or refusing a test, and (2) an administrative action to suspend the person’s driver’s license. The Constitution protects us from warrantless searches and says that we can’t be prosecuted criminally for invoking Constitutional rights. However, driving is considered a privilege and not a right. That privilege is controlled by the government and they can grant it or take it away whenever they like. So, if Kansas wants to suspend licenses for DUI convictions or suspend people longer for refusing in an administrative process, it can. They can take your license, but they shouldn’t be able to put you in jail.