Supreme Court in Position to Rein in Police Abuse of Consent Searches in DWI Cases

 Posted on April 04, 2019 in Uncategorized

Several of our recent blog posts have covered the upcoming U.S. Supreme Court case, State v. Mitchell. The case deals with DWI law and the six exceptions to the warrant requirement and will likely build on the last DWI case that made it to the Supreme Court, Birchfield v. North Dakota, which showcased how implied consent laws have gotten out of hand.

Mitchell provides an excellent opportunity to rein in those implied consent laws and limit how police use consent searches to get around your Fourth Amendment rights.

Implied Consent Laws and Your Rights

Implied consent laws are statutes that attach a string to your right to drive. That string says that, by driving, you consent to a chemical test for your blood alcohol content (BAC) whenever a police officer requests you to perform one.

Implied consent laws were designed to prevent drivers who knew they were drunk from thwarting the law by refusing to take a breath test. Under a state's implied consent law, drivers would automatically face a license suspension for refusing.

Of course, the point of administering a BAC test is to find evidence of DWI, which is a crime. Therefore, a BAC test is a "search" under the Fourth Amendment – one that has to be "reasonable" in order for the evidence it obtains to be admissible in court.

Having the consent of the suspect, however, is one of the ways that a warrantless search can be deemed "reasonable." Therefore, what it means to "give consent" to a search is critically important.

How Police Abused Implied Consent Laws in State v. Mitchell

In State v. Mitchell, police arrested someone they suspected of DWI – even though they never actually saw him in a vehicle. While in custody and before police could get him to take a reliable BAC test, he passed out from the alcohol in his system.

So, when police requested a blood draw under the state's implied consent law, they were met with silence. Rather than seeing this as a lack of consent that would have denied them the right to conduct the search, the police saw it as a lack of withdrawn consent. They took a blood sample – a type of search that implicates far more intense privacy concerns than a breath sample – and found that the suspect had a BAC of 0.222%.

Supreme Court Could Rein in Consent Searches

So far, every court has found the blood draw permissible and has allowed the suspect's conviction to stand. The Supreme Court of the United States, however, is in the position to finally put an end to a disturbing trend in law enforcement that ignores privacy concerns and treats silence as a form of consent.

Doug Murphy: A Board Certified DWI Defense Lawyer in Houston

Doug Murphy is an attorney who has been Board Certified in DWI defense law. You can contact him online or call his law office at 713-229-8333 if you have been arrested and accused of drunk driving or drugged driving in the Houston area.