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Implied Consent Law Faces the Supreme Court

by | Apr 19, 2016 | 0 comments

Implied Consent Laws in Jeopardy

The Supreme Court of the United States will hear arguments today on the constitutionality of implied consent in Bernard v. Minnesota. Their decision could impact DUI laws throughout the country.

Implied consent laws are the foundation of our country’s drunk driving laws. According to the rule of implied consent, drivers (by virtue of having a driver’s license) agree to be tested by breathalyzer or blood test if they are suspected of drunk driving. Refusal to take a breathalyzer test in Georgia can result in the suspension of your driver’s license.

Implied Consent Results in a Misdemeanor

Unlike Georgia, in Minnesota, anyone who refuses to take a Breathalyzer test may be convicted of a misdemeanor. This is the case in 12 other states as well. That’s right — in 13 states, refusing to take a breathalyzer test is a crime, separate from a DUI charge.

In the Bernard case, police suspected William Bernard of drunk driving when they found him in his underwear, trying to hitch a boat to his truck. Bernard had the keys to the truck in his hand and (according to the police) smelled of alcohol. The officers asked him to submit to a breathalyzer test twice: once at the scene and again when he was brought to the police station. Bernard refused to take the test both times, saying “he didn’t have any reason to take one.”

The implied consent law of Minnesota makes Bernard’s refusals a misdemeanor and he was charged with two counts of First Degree DWI–Test Refusal.

The Unconstitutionality of Implied Consent Laws

Bernard argues that Minnesota’s implied consent law is unconstitutional and is a violation of his Fourth Amendment rights.

The Fourth Amendment protects you from unlawful searches and seizures. In most criminal investigations, absent exigent circumstances, if the government wants to search your home or have access to your property, they need a warrant.

Bernard’s position is that the breathalyzer conducts a search of his breat and he argues that if the state of Minnesota is going to make refusal to take a breathalyzer test a criminal offense, then they should be required to obtain a search warrant. Minnesota’s position is that they don’t need a warrant because the breathalyzer is a “search incident to arrest.” Searches incident to arrest” are one of the few exceptions to the Fourth Amendment’s requirement that police obtain a warrant before conducting a search.

Implications for Georgia Implied Consent

Refusing to take a breathalyzer or blood test in Georgia may result in the loss of your driver’s license for one year. Unlike the Minnesota law, Georgia’s implied consent law results in an administrative sanction by the Georgia Department of Driver’s Services and is not a criminal offense.

Still, the Supreme Court’s decision in Bernard may have ramifications for implied consent laws throughout the nation and in Georgia. The Court could render a decision undermining all implied consent laws, destroying the very foundation of DUI law.

Given how common implied consent laws are, this is a case that will be watched closely by legislators, law enforcement, and DUI attorneys.

Gwinnett County DUI Attorney

Christina Bridger is a criminal defense attorney who exclusively represents DUI clients. Centrally located in Gwinnett County, Ms. Bridger represents DUI clients throughout the state of Georgia. Christina has over 10 years of experience with DUI and Drunk Driving Cases.  When you are facing DUI charges in Gwinnett County, trust Bridger Law for your defense. Give us a call today at (770) 847-6571 for your DUI defense.