February 14, 2015

Breaking News - Submission Is Not Consent

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Posted on January 28, 2015 by Chuck Ramsay We interrupt the consent search blog series currently in progress to bring you breaking news: Minnesota district court judges are finally finding that submission to lawful authority is not consent. Relying on the 8th Circuit’s 2004 and 2005 decisions in U.S. v. Gray and U.S. v. Sanders, at least two brave judges are resuscitating the Fourth Amendment by reminding the State that an individual’s consent to a warrantless search may always be withdrawn. Drivers reserve the right to change their minds, and “no” once again means “no.”

Don’t break out the champagne yet, though. These brave district court judges, and their refreshingly true-to-the-constitution decisions, will likely face reversal on appeal when the Court of Appeals finds consent under its interpretation of State v. Brooks. We’re still looking, but we have yet to find a single DWI test coercion case the Court of Appeals couldn’t convert to consent.

So, what is the take-away? Lawyers need to understand the critical legal distinction between submission and consent so that they can effectively counsel drivers about their constitutional rights. In State v. Hoven, the Minnesota Supreme Court noted, as did the federal court in Gray and Sanders, that an individual may withdraw consent to a warrantless search.

In the DWI context, drivers have the constitutional right to see a warrant before law enforcement obtain a blood, breath, or urine sample. According to the courts, drivers should be able to withdraw their consent to a warrantless search by expressing their intent to withdraw consent with an unequivocal act or statement (I’ll give an example of what that looks like in a minute). Once a driver withdraws his or her consent, the driver may then submit to the warrantless test law enforcement tells them they are “required by law” to take … because submitting to that test is not the same thing as consenting to it.  Without valid consent – or one of the other judicially-crafted exceptions to the constitution – the results of a warrantless test must be suppressed.

Attorneys cannot ethically or legally counsel a client to commit the crime of test refusal, but attorneys must inform clients that an unequivocal withdrawal of consent by word or action is a constitutional right. While this isn’t legal advice, something like this oughtta do it: “I withdraw my implied consent to a warrantless search and I do not freely and voluntarily consent to the warrantless test of my blood, breath, or urine. I am submitting to a chemical test only because I am required to do so by law, and I am acquiescing to a claim of lawful authority. I do not consent.”

Stay tuned for the next installment in the consent search series: The Evolution of the Consent Search Doctrine.

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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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