No More “Coerced Consent”?


We’ve previously talked about how Minnesota has what’s called an implied consent law, requiring drivers to submit to a blood, breath, or urine test. (Because the law provides criminal penalties for refusal, it’s sometimes referred to as “coerced consent.”)  The idea is that by driving on the state’s roads, you are agreeing in advance that you will submit to these tests if a police officer asks you to.

The problem is, these tests are also considered a search of the driver, and the Fourth Amendment generally prohibits warrantless searches.  So, if a police officer doesn’t have a warrant to perform a chemical test on a driver, doesn’t that make the test a violation of the Fourth Amendment?  In the past, courts have said no, based on what’s called the exigency exception to the general requirement of a warrant.  Under that exception, law enforcement officers can perform a search when, among other things, the search is necessary to prevent the imminent destruction of evidence.  Because a driver’s body will metabolize alcohol during the time period a police officer is trying to get a warrant, it was thought that warrantless chemical tests were permitted under this exigency exception.

However, a recent U.S. Supreme Court case, called Missouri v. McNeely, has turned that thought upside down.  In that case, the Supreme Court found that the prospect of the body metabolizing any alcohol in the driver’s system does not necessarily give police officers a strong enough reason to perform a warrantless search under an implied consent law.  Instead, police officers would have to show for each specific case that, under all the circumstances, the officers were justified in performing a chemical test if the driver had refused to take one.

While the Supreme Court wasn’t particularly specific about what circumstances might or might not justify a nonconsensual test, it’s clear that police officers simply telling drivers they have to submit to a test or face criminal penalties isn’t going to cut it anymore.  In fact, the Supreme Court specifically overturned a Minnesota case that had decided that the natural dissipation of blood-alcohol evidence alone was enough to be an exigency.

To come into compliance with the Supreme Court’s decision, Stearns County is now considering becoming the first Minnesota county to require its police officers to obtain a warrant before taking a blood sample, if a driver refuses to take the test voluntarily.  It’s not clear whether other counties will follow suit or whether Minnesota prosecutors will try to limit the implications of the McNeely case, but for now, Minnesota’s implied consent law does appear to be in some jeopardy.

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