People v. Agnew: Implied Consent and the Fourth Amendment

Driving under the influence, a common crime, often results in uncommon Constitutional issues.  A general Constitutional rule of the Fourth Amendment is that a search or seizure is per se unreasonable unless the search or seizure was conducted pursuant to a warrant or falls under a recognized exception to the warrant requirement.  One recognized exception is when a person voluntarily consents to the search or seizure.

Ordinarily, a person's consent is contemporaneous with the search.  For instance, during a traffic stop a police officer may ask you if it's okay with you if she searches your car for drugs or weapons.  If you say, "sure, go ahead", you've given consent and the police officer can search your car without a warrant without violating your rights under the Fourth Amendment.

In California, we have something called "implied consent" for drivers.  By driving a car in California, you have consented (whether you realize it or not), in advance, to providing a blood, breath, or urine, sample upon valid arrest for DUI.  What this means is that the police officer arresting you doesn't need to ask you for consent as does the officer in the example above.

However you can withdraw your implied consent.  If you do withdraw your consent, the police officer has to either get a warrant to draw your blood or find another exception to the warrant requirement.  But refusing to give a sample will result in the DMV suspending your license.

Here, Mr. Agnew was pulled over for a traffic infraction.  The policeman smelled beer on Agnew's breath, and Agnew admitted having imbibed that evening.  After arresting Agnew, the policeman told him California law required Agnew to give a blood or breath sample.  Angew chose a blood test and was taken to a hospital where his blood was drawn.

Agnew moved to suppress his blood results and the trial court granted his motion.  The trial judge found that because the policeman told Agnew that he was legally required to provide a sample, Agnew's consent was not knowing and voluntary, but rather an acquiescence to a claim of authority.  Submission to a false claim of lawful authority is not consent.  For example, if a policewoman knocks on your door with her pistol drawn and tells you she is coming inside your house, your saying "okay" and stepping aside is not effective consent.  

The prosecutor appealed to the appellate division of the Superior Court.  The appellate division reverses.  They remand to the trial court for a determination in light of the fact that Agnew already consented to the blood draw when he drove a car in California.

The opinion is unnecessarily long, as are most Superior Court appellate decisions (I suspect insecurity).  But it is an interesting issue.  The implied consent law actually makes the issue whether Agnew withdrew his consent, not whether he gave it.  By telling Agnew that "California law requires" it, did the policeman imply that Agnew couldn't withdraw his consent?  Actually, it's not California's criminal law that requires Agnew to submit to a test.  Agnew cannot be convicted of a crime if he refuses, but is that what the policeman communicated?  Even if the policeman directly told Agnew he couldn't refuse, does that negate Agnew's previous consent if his previous consent was voluntary?

DUI opinions are seldom simple.