On July 21, 2015, the Eighth Circuit Court of Appeals decided Wall v. Stanek [i], which discussed the constitutionality of consent for a blood test obtained under a state’s implied consent law. The relevant facts of Wall, taken directly from the case, are as follows:
At approximately 1:00 a.m. on June 20, 2011, Hennepin County Sheriff’s Deputy Barbara Russeth stopped Wall for a traffic violation. Upon her exiting the vehicle, Wall smelled of alcohol, exhibited poor balance, failed multiple field sobriety tests, and in a preliminary breath test, she produced a blood-alcohol concentration (BAC) of .109—beyond the .08 legal threshold, see Minn. Stat. § 169A.20, subd. 1(5). Based on these results, Deputy Russeth arrested Wall and arranged for her car to be towed.
At around 1:40 a.m., they arrived at patrol headquarters, where Deputy Russeth sought Wall’s consent to conduct a urine or blood test to determine Wall’s BAC. In compliance with Minnesota’s Implied Consent Law, see Minn. Stat. § 169A.51, subd. 2, Deputy Russeth read aloud the state’s “implied consent advisory,” informing Wall that (1) she was arrested on suspicion of driving while impaired, (2) “Minnesota law require[d her] to take a test” of alcohol content, (3) “[r]efusal to take a test [wa]s a crime,” and (4) “[b]efore making [he]r decision about testing, [she] ha[d] the right to consult with an attorney.” Affirming her understanding of her rights and disclaiming her right to consult an attorney, Wall agreed to a urinalysis.
After about forty-five minutes, Wall had not produced a urine sample, so Deputy Russeth transported Wall to the Hennepin County Medical Center where Wall agreed, at 2:58 a.m., to a blood analysis. Deputy Russeth then instructed a registered nurse to draw a blood sample. Analysis of the sample indicated a BAC of .06. Wall pled guilty to a petty misdemeanor traffic violation and her DWI charge was dismissed. [ii]
Wall filed a civil suit and alleged that the county had a policy or custom of conducting warrantless, non-consensual blood tests to obtain blood alcohol content in violation of the Fourth Amendment. The county argued that the Wall voluntarily consented to the blood test. The district court agreed with the county that Wall consented to the blood test and dismissed the suit. Wall appealed to the Eighth Circuit Court of Appeals.
On appeal, Wall argued that her consent to the blood test was not valid consent under the Fourth Amendment because her choice was to either consent or face a criminal penalty under state law.
At the outset, the court noted that it is clear that Wall has a reasonable expectation of privacy regarding a draw and test of her blood. The question then becomes, whether consent obtained under Minnesota’s implied consent statute, one that imposes criminal penalties for a refusal, is valid and reasonable under the Fourth Amendment.
The court first looked at precedent from the Supreme Court of the United States regarding implied consent laws. The court stated:
The United States Supreme Court has previously examined the dilemma created by similar implied consent laws. In South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court addressed the constitutionality of South Dakota’s implied consent statute, under which the price of refusing a blood-alcohol test was the one-year revocation of a suspect’s license (after a hearing) and the ability to use the suspect’s refusal against him at trial. See id. at 559-60. As to the license revocation, the Court decided this penalty was “unquestionably legitimate, assuming appropriate procedural protections.” Id.at 560. The Court also determined that the Fifth Amendment did not preclude the state from using the defendant’s refusal against him at trial, because “[t]he simple blood-alcohol test is so safe, painless, and commonplace” that “the State could legitimately compel the suspect, against his will, to accede to the test.” Id. at 563. “Given . . . that the offer of taking a blood-alcohol test is clearly legitimate,” the Court reasoned that “the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice.” Id. [iii] [Emphasis added]
The Eighth Circuit noted that Minnesota imposes a criminal penalty for refusal whereas in Neville, South Dakota imposed an administrative license suspension. Regarding this criminal penalty, the court stated:
Minnesota goes a step further by imposing direct criminal consequences on refusal. See Minn. Stat. § 169A.20, subd. 2. The reasoning in Neville, however, gave no apparent regard to the harshness of “the attendant penalties for making th[e] choice” to refuse a test. Neville, 459 U.S. at 563. And the challenged law in Neville also imposed criminal consequences on a suspect’s refusal—the state could convict the suspect of a DWI using the refusal as evidence of impaired driving. See id. at 560, 562-63. [iv]
Further, the court noted that in Missour v. McNeely [v], the Supreme Court, while holding a warrantless non-consensualblood test invalid, did speak favorably of implied consent statutes as a means of enforcing DUI laws and obtaining consent for blood tests.
The court then examined Wall’s coercion argument regarding the validity of her consent. While agreeing that her argument has some merit, the court also noted that it contradicts specific guidance on this same topic from the Supreme Court. Specifically, in Neville and McNeely, the Supreme Court supported the validity of implied consent statutes and the consent obtained via the use of such statutes as a reasonable means of enforcing DUI laws.
In summing up its reasoning in Wall’s case, the Eighth Circuit stated:
By choosing to “drive . . . a motor vehicle within [Minnesota],” Wall was deemed by Minnesota law to have initially “consent[ed] . . . to a chemical test of [her] blood, breath, or urine for the purpose of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a). Consistent with Minnesota’s implied consent law, Deputy Russeth only requested a fluid sample after Wall failed numerous field tests, including a preliminary breath test, giving Deputy Russeth probable cause to suspect Wall was driving while impaired. See id. § 169A.51, subd. 1(b)(4) (“The test may be required of a person when an officer has probable cause to believe the person was driving [while impaired] . . . and . . . the screening test . . . indicated an alcohol concentration of 0.08 or more.”). In requesting Wall’s consent, Deputy Russeth read Minnesota’s implied consent advisory, asking Wall to decide between consent and refusal and explaining she could first consult an attorney. See id. § 169A.51, subd. 2(a).
[T]he choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make[, b]ut the criminal process often requires suspects and defendants to make difficult choices.” Neville, 459 U.S. at 564. Wall’s choice was undoubtedly difficult in view of the penalties of refusal, but the implied consent procedure is an important “legal tool” states have at their disposal “to enforce their drunk-driving laws and secure BAC evidence.” McNeely, 569 U.S. at ___, 133 S. Ct. at 1566 (plurality opinion). Wall’s dilemma, alone, does not satisfy her burden of nullifying her otherwise uninhibited consent. See Der, 666 F.3d at 1128. [vi] [emphasis added]
Therefore, the Eighth Circuit affirmed summary judgment for county in this case.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-2878 (8th Cir. Decided July 21, 2015)
[ii] Id. at 2-3
[iii] Id. at 5
[v] 133 S.Ct. 1552 (2013)
[vi] Wall at 7-8