DUI Test Refusal and Criminal Charges – What’s Next?

There is much speculation regarding the impact, if any, of the McNeely[1] decision on warrantless blood draws in DUI/DUID traffic investigations, stops, DUI test refusals, and arrests. The analysis is varied with some claiming that the holding mandates that law enforcement secure a warrant prior to any blood draws while others suggest that whether a warrant is mandatory shall be determined on a case by case basis under the totality of the circumstances. In any event, it seems clear that if law enforcement secures a warrant, they have the right to conduct a blood draw without the consent of the defendant.

What Are Implied Consent Statutes?

This is where the clarity ends however. What happens when there is a refusal under an implied consent statute? May law enforcement still do a blood draw? Implied consent statutory schemes are in every state. The statutes say that by applying for a driver’s license, defendants have consented to taking a chemical test if arrested for DWI/DUID.  The defendant has the right to decline the taking of either a breath or blood test by law enforcement in a DUI/DUID but there are consequences. Some implied consent statutes do have some exceptions wherein a blood draw may go forward without a warrant for fatal or serious bodily injury crashes or probable cause to believe that the defendant has committed negligent homicide or vehicular assault.

This refusal however is not without a penalty to the Defendant.  In the majority of implied consent statutes, the Defendant’s driving privilege is administratively automatically suspended or revoked for a time certain which may increase with the number of prior DUI convictions. In some states the punishment for a refusal could be a combination of a suspension or revocation along with fines,[2] and community service[3].

In addition to monetary and license sanctions, some states make jail time available, especially for multiple offenses.[4][5] The ultimate consequence is that in a few states the Defendant may be charged with a criminal misdemeanor or felony for refusing the chemical test irrespective of a conviction for the underlying DWI charge.[6]  Thirteen states make it a crime to refuse blood alcohol tests: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia.  Penalties range from a maximum of seven years in prison and a fine of up to $14,000 in Minnesota to a misdemeanor charge in North Dakota.

Supreme Court to review criminalizing implied consent refusals.

U.S. Supreme Court to Review DUI Test Refusals

May a state criminally prosecute a motorist for refusing to submit to a blood, breath or urine test in the absence of a warrant? We may have an answer soon. In December, 2015 the U.S. Supreme Court chose to hear arguments on three consolidated cases which center on this issue. Two are from North Dakota, while a third is from neighboring Minnesota in which drivers were charged with a crime after they refused to take a breath test.  “The Minnesota Supreme Court said that ‘charging  [defendant] with criminal test refusal does not implicate a fundamental right.’” If the high court mirrors its 2013 decision on unauthorized blood alcohol tests, it’s possible that states could no longer use the threat of criminal penalties to coerce DUI suspects into taking these tests.

What Do You Think?

These cases present issues pertaining to both the constitutionality of criminalizing / penalizing chemical test refusals in impaired driving cases and the constitutionality of warrantless chemical tests authorized by states’ implied consent laws.

How do you think the Supreme Court will rule? What about all of the other penalties for refusals, will they inevitably be deemed as coercive? Will a Supreme Court decision overturning the Dakota and Minnesota Statutes spell an end to Implied Consent Statutes?

Footnotes

[1]  Missouri v. McNeely, 569 U. S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013)

[2]  O.R.S. § 813.095, 813.100, 813.430 (additional traffic offense);

[3]  Gen. Laws 1956, § 31-27-2.1 (imprisonment with 3^rd offense in 5 years);

[4]  LSA-R.S. 32:666; M.S.A § 169A.20, 169A.26, 169A.275;

[5]  West’s Ann.Cal.Vehicle Code § 23577;

[6]  West’s F.S.A. § 316.1932 and § 316.1939; N.R.S. 484.383, 484.999, 193.120;