States' implied consent laws regarding submitting to DUI tests are under attack - as well they should be.
A provision in Kansas law that equates the state's implied consent law with permission to allow a blood sample to be drawn to determine intoxication was overturned by that state's Supreme Court earlier this year. It all began with a widely-cited Missouri v. McNeely case last year, the Supreme Court of the United States issued a ruling stating that a blood sample taken from a DUI suspect should be suppressed because the officer did not first obtain a search warrant.
The latest battleground over implied consent law is taking place further north in North Dakota. This week, state Supreme Court justices heard arguments in State v. Brenny, where a man is fighting a drunk driving conviction obtained under similar circumstances. Last September, Jason Brenny was pulled over and told that the state's newly-enacted implied consent laws required him to submit to a blood draw or be charged with a crime that is similar in severity to DUI.
Brenny's lawyer argued that a person cannot freely give consent when the alternative is being charged with a criminal act, and that the test violated Brenny's Fourth Amendment rights against unlawful search and seizure. The state is arguing that there was already enough evidence to place Brenny under arrest, and that Brenny made his choice with full knowledge of its consequences.
The court is set to rule on this case at a later date. Hopefully, its decision will resemble those made in Kansas and Missouri. Washington's historically troubled Implied Consent Law, RCW 46.20.308, has been the subject of DUI defense attorney challenges following the McNeely decision. Decisions from the appellate courts are expected.