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| Blowing in the wind |
By Elizabeth Kruska
As a DUI-defense lawyer, this is one of my current favorite Vermont Supreme Court cases. When a driver is stopped and the matter turns into a DUI arrest, the driver is usually asked to provide an evidentiary sample to determine whether or not he or she was under the influence of alcohol or other drugs at the time of operation. I just typed that sentence without even thinking about it. That’s how frequently I say those words.
Vermont has a statute known as the implied consent statute. This statute must be read to a DUI suspect prior to the person choosing to submit to an evidentiary test (or not). The question in this case is whether or not the existence of this statute “effectively granted automatic and presumptive consent to an evidentiary breath test.” If so, that means no defendant could ever challenge the breath test as having been done involuntarily.
If you think about it, it seems like it would be hard to argue that the affirmative step of a person blowing air into a breath testing machine was done involuntarily. Doing one of these breath tests is a little bit like blowing up a balloon. The person has to breathe in, put their mouth onto the machine (there’s a tube that gets changed for every person), and then actively blow air into the machine. From a physiological standpoint it’s hard to say someone is compelled to do this.
But that’s not the question when we’re talking about something being done involuntarily from a constitutional standpoint. The issue is whether the surrounding facts and circumstances to the person assenting to the breath test tend to show that doing so was the persons free and voluntary choice.
The relevant constitutional provision here is Chapter I, Article 11 of the Vermont Constitution, which is our constitutional analogue to the Fourth Amendment. Except Vermont’s provision is better. First of all, Chapter I, Article 11 is older than the Fourth Amendment and has slightly different language. And because states are permitted to provide greater protections to the citizenry than the minimum permitted under the United States Constitution, we actually have more protections with respect to search and seizure. This is also true of some other states’ constitutional protections. In fact, there’s a whole body of scholarly legal study about these differences and where they occur and why. It’s fascinating. Well, it is to me.
To get this out of the way, a breath test is a search. In order to do a search, law enforcement generally needs a warrant, unless there is some exception to the warrant requirement. One exception is consent. A person can consent to permit a search. Put a pin in this for a second.
Vermont’s implied consent law states, “every person who operates, attempts to operate, or is in actual physical control of any vehicle on a highway in this state is deemed to have given consent to an evidentiary test of that person’s breath for the purpose of determining the person’s alcohol concentration or presence of other drug in the blood.”
Hm. There seems to be a problem. If we agree that a breath test is a search, and we agree that warrantless searches are per se unreasonable (we agree; trust me on this), and we agree that an exception to the warrant requirement can be consent, we can’t also have it that a statute – which is not the same as the constitution – basically says that someone must consent to a warrantless search. This starts to look like a legislatively-created general warrant. If you recall, we had a war in or around 1776 where we collectively decided we weren’t into general warrants, thank you very much. I mean, we had other problems, too. I won’t list them all here. We have a handy Declaration that spells out most of them.
Anyway, there are have other parts of the same statute (and other statutes in the same chapter) that set forth some consequences for refusing to submit to an evidentiary test. And everyone recognizes that a person can’t be forced to blow into a tube—it just doesn’t work.
So, here’s where this comes down. Since an evidentiary breath test is a search, if a person is going to agree to do that search under the implied consent statute, that person’s consent must still be voluntary. If the government somehow intimidates or entices a person in order to get them to consent to a search, then that consent probably isn’t voluntarily given. If the government appropriately supplies the information about the possible consequences of taking the test and refusing to take the test, and the person weighs that information—and maybe even talks to a lawyer about it (maybe even me!)—and makes a decision, that’s probably voluntary.
The existence of the implied consent statute doesn’t take away a DUI defendant’s right to challenge the voluntariness of his or her consent to submit to an evidentiary breath test. It also doesn’t mean the state has to prove that every test was voluntary. It just allows an avenue for a defendant to challenge the issue if it is an issue.
I really like constitutional criminal procedure.
Oh yeah. I was so excited about the criminal procedure part that I forgot to say what happened in this case. The defendant attempted to challenge the voluntariness of his test, and that was denied. He entered a conditional plea of guilty, appealed, and SCOV reverses, saying that a defendant is allowed to challenge the voluntariness of an evidentiary breath test.
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