An Invitation to Question the Validity of Consent Under Georgia’s DUI Implied Consent Scheme
The United States Supreme States Supreme Court has recently stated in no uncertain terms:
“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a [chemical test is performed] without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”
Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 1563 (2013).
In McNeely, the United States Government made an unexpected concession in its amicus brief:
Implied-consent laws place a motorist on notice that, as a condition of obtaining the privilege to drive, he implicitly consents to submit to a chemical test to determine whether he is intoxicated. While the existence of implied-consent laws is not dispositive of the constitutional question, it underscores that a driver’s privacy expectations are shaped by society’s recognition that the paramount interest in highway safety can justify actions that might not be allowed in other contexts.
Since I read this rather candid concession by the Government in McNeely, in every case involving a state-administered chemical test, I have been challenging the voluntariness of consent garnered pursuant to Implied Consent in a DUI case.
A “search conducted pursuant to a valid consent is constitutionally permissible[.]” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). However, valid consent is “in fact, freely and voluntarily given[.]” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “[The government’s] burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. at 548-49. The United States Supreme Court has repeatedly rejected the validity of searches based upon purported consent that “was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” In Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the Supreme Court held that a search of a home that “was demanded under color of office” when the government did not possess a search warrant. In Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921), the Supreme Court held:
[t]he contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained…[I]t is perfectly clear that under the implied coercion presented, no such waiver was intended or effected.
So, the question lingers: after a suspect is told that Georgia law requires that they submit to a test of their blood, breath or urine, isn’t that simply submission to a show of authority?
This is the 1st in a series of posts that I will doing on what I perceive to be as a serious and lingering challenge to the validity of Georgia’s DUI Implied Consent scheme.
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