Also known as: implied consent laws · implied consent
Written by attorneys — see sources below.
A statutory scheme under which a motorist operating a vehicle on public roads is deemed to have consented to chemical testing for blood alcohol concentration upon lawful arrest or detention for suspected drunk driving. Refusal triggers civil sanctions such as license suspension. Criminal punishment for refusal is impermissible under the Fourth Amendment.
Ike Ingram arrives at the hospital unconscious after a crash. Dr. Iris Irons discovers internal bleeding requiring immediate surgery beyond the consent form Ike signed earlier. She proceeds with the extended procedure. The implied consent doctrine shields her from battery liability because the circumstances would lead a reasonable person to authorize the additional steps.
Ivan Ivanov is arrested for suspected drunk driving. Officers invoke the state's implied consent law and request a blood draw. Ivan refuses. The state suspends his license for one year under the civil penalty provisions. No criminal charge is filed for the refusal itself.
In the early morning hours, a Missouri police officer on highway patrol stopped Tyler McNeely’s truck at approximately 2:08 a.m. after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including bloodshot eyes, slurred speech, and the smell of alcohol on his breath. McNeely acknowledged that he had consumed a couple of beers at a bar, appeared unsteady on his feet when he exited the truck, and performed poorly on a battery of field-sobriety tests before declining to use a portable breath-test device. The officer placed McNeely under arrest and began transporting him to the station house. When McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took him to a nearby hospital for blood testing without attempting to secure a warrant. Upon arrival at the hospital, the officer read McNeely a standard implied consent form explaining that refusal to submit voluntarily to the test would lead to immediate revocation of his driver’s license for one year and could be used against him in a future prosecution under Missouri law. McNeely nonetheless refused consent. The officer then directed a hospital lab technician to take a blood sample, which was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s blood alcohol concentration at 0.154 percent. McNeely was charged with driving while intoxicated. He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court granted the motion to suppress, concluding that the exigency exception did not apply because, apart from the natural dissipation of blood alcohol, no circumstances suggested that the officer faced an emergency in which he could not practicably obtain a warrant. The Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court, which affirmed the suppression order. The Supreme Court of the United States granted certiorari.
View caseImran Iyer and his spouse Isabelle Inman are involved in a domestic incident. Isabelle claims implied ongoing consent from their marriage prevents prosecution. The court rejects the marital exemption argument. Implied consent from the marriage contract does not authorize forcible sexual assault.
Mario Liberta and Denise Liberta married in 1978. Shortly after the birth of their son in October 1978, Mario began beating Denise. In early 1980, Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant. On April 30, 1980, the Family Court issued a temporary order of protection requiring the defendant to move out and remain away from the family home and to stay away from Denise, while permitting weekend visits with their son. On the weekend of March 21, 1981, Mario did not visit his son. On Tuesday, March 24, 1981, he called Denise to request a visit that day. Denise agreed to allow him to pick up her and their son and take them to his motel after he assured her that a friend would be present at all times. The defendant and his friend picked up Denise and their son and drove to the motel. Upon arrival at the motel the friend left. Mario then attacked Denise, threatened to kill her, and forced her to perform fellatio and engage in sexual intercourse while their son was in the room. The defendant forced Denise to tell their son to watch what he was doing to her. After the incident, Denise went to her parents’ home, then to a hospital for treatment of scratches on her neck and bruises on her head and back. She also went to the police station and swore out a felony complaint the next day. On July 15, 1981, the defendant was indicted for rape in the first degree and sodomy in the first degree. The defendant moved to dismiss the indictment. The trial court granted the motion and dismissed the indictment. On appeal by the People, the Appellate Division reversed, reinstated the indictment, and remanded for trial. The defendant was convicted of both charges, and the Appellate Division affirmed the conviction. The defendant appealed to the Court of Appeals.
View caseOfficers executing a warrant at Iain Irons's home allow a reporter to accompany them inside. Iain objects that no implied consent existed for the media presence. The court holds the entry violated the Fourth Amendment. Mere presence of officers does not imply consent to third-party observers.
In early 1992 the Attorney General approved Operation Gunsmoke, a national program in which United States Marshals and local police targeted armed fugitives wanted for serious drug and violent felonies. One target was Dominic Wilson, who had violated probation on robbery, theft, and assault charges and whose computer record listed caution indicators for being armed and resisting arrest. The listed address was 909 North Stone Street Avenue in Rockville, Maryland, the home of his parents Charles and Geraldine Wilson. In April 1992 the Circuit Court for Montgomery County issued three arrest warrants for Dominic Wilson addressed to any peace officer and commanding immediate arrest; the warrants contained no reference to media presence. On April 16, 1992 a Gunsmoke team of Deputy United States Marshals and Montgomery County officers assembled to execute the warrants. The team was accompanied by a Washington Post reporter and photographer invited under the Marshals Service ride-along policy. Shortly after 6:45 a.m. the officers entered the Wilson home. Charles Wilson, wearing only briefs, confronted the armed men in street clothes and was subdued on the living-room floor. Geraldine Wilson, wearing only a nightgown, entered and saw her husband restrained. After a protective sweep revealed Dominic Wilson was absent, the officers left; during the entry the Post photographer took numerous pictures while the reporter observed. The Washington Post never published the photographs. Charles and Geraldine Wilson sued the federal officers under Bivens and the county officers under 42 U.S.C. § 1983, alleging that the media presence during the warrant execution violated their Fourth Amendment rights. The district court denied the officers’ motion for summary judgment on qualified-immunity grounds. On interlocutory appeal a Fourth Circuit panel reversed; after two en banc rehearings the court upheld qualified immunity without deciding whether the media presence violated the Fourth Amendment. The Fourth Circuit reasoned that no prior decision had held media entry into a home during warrant execution unconstitutional, so the asserted right was not clearly established. Noting a circuit split on the issue, the Supreme Court granted certiorari.
View caseIntegrity Partners members agree to a scheme involving out-of-state filings. One conspirator performs an overt act in the District of Columbia. The court finds jurisdiction proper because the overt act supplies the necessary connection. Implied consent to the forum arises from participation in the coordinated plan.
In October 1901, Frederick A. Hyde and John A. Benson began operating in San Francisco, California, a business of obtaining school lands from the states of California and Oregon within proposed forest reserves and exchanging them for more valuable public lands of the United States outside such reserves. They employed Joost H. Schneider as an agent to obtain fictitious affidavits and Henry P. Dimond as an attorney to handle matters before the General Land Office. Woodford D. Harlan and William E. Valk served as employees in the General Land Office in Washington, D.C. Benjamin F. Allen and Grant I. Taggart held positions as forest superintendent and supervisor. On December 30, 1901, the indictment alleged that Hyde, Benson, Dimond, and Schneider conspired in Washington, D.C., to defraud the United States by using false applications in the names of fictitious or unqualified persons to acquire school lands from California and Oregon, then corruptly influencing Land Office officials to approve exchanges for selected public lands totaling 6,800 acres. The scheme involved paying small sums to individuals for use of their names, bribing officials for information and expedited approvals, and securing the establishment of forest reserves in advantageous locations. Overt acts charged included Dimond entering appearances in selection cases in the General Land Office, Hyde causing documents to be mailed from Vancouver to the Commissioner, and payments by Benson to Valk or Harlan. Following the return of the indictment, removal proceedings were instituted against Hyde and Dimond before a United States Commissioner in California. After testimony, the commissioner ordered removal, and writs of habeas corpus and certiorati were denied by the United States Circuit Court and affirmed by the Supreme Court in Hyde v. Shine. A demurrer to the indictment was overruled, with the ruling affirmed by the Court of Appeals of the District of Columbia. Motions for a bill of particulars were granted. Motions to elect counts were denied. Pleas in abatement were rejected after demurrers were sustained. At trial in the Supreme Court of the District of Columbia, Benson and Dimond were acquitted while Hyde and Schneider were convicted on all but two counts. Hyde received a sentence of two years' imprisonment and a $10,000 fine, and Schneider was sentenced to one year and two months' imprisonment and a $2,000 fine. The Court of Appeals of the District of Columbia affirmed the convictions in Hyde v. United States, 35 App. D.C. 451, after which the Supreme Court granted certiorari. The indictment contained 42 counts, with the first detailing the conspiracy and subsequent counts adding specific overt acts such as filings by Dimond and payments to officials. Evidence at trial included Schneider's partial disclosure to government agents in 1902 and documents, letters, and witness statements regarding the land selections and communications with the Land Office.
View caseInspectors enter Ironwood Capital's stone quarry without a warrant under a federal mine safety statute. The company challenges the search. The court upholds the inspection because participation in the pervasively regulated industry carries an implied consent to reasonable warrantless regulatory visits.
Congress enacted the Federal Mine Safety and Health Act of 1977. The statute directed the Secretary of Labor to develop detailed mandatory health and safety standards for the Nation's mines and authorized federal mine inspectors to conduct warrantless inspections of all mines at specified frequencies without advance notice. In July 1978, a federal mine inspector attempted to inspect quarries owned by Waukesha Lime and Stone Co. to determine whether 25 previously discovered safety and health violations had been corrected. After the inspector had been on the site for about an hour, company president Douglas Dewey refused to allow the inspection to continue unless the inspector first obtained a search warrant. The inspector issued a citation to Waukesha for terminating the inspection. The Secretary of Labor filed a civil action in the District Court for the Eastern District of Wisconsin seeking to enjoin the appellees from refusing to permit warrantless searches. The District Court granted summary judgment in favor of appellees on the ground that the Fourth Amendment prohibited the warrantless searches authorized by the Act. The Secretary appealed directly to the Supreme Court pursuant to 28 U.S.C. § 1252, and the Court noted probable jurisdiction.
View caseA state may impose civil penalties such as immediate license suspension or revocation. Criminal penalties for the refusal itself are not permitted under the Fourth Amendment.
Supporting sources
No. The implied consent statute provides a basis for testing but does not eliminate the need to consider exigent circumstances or obtain a warrant when time permits. The totality of circumstances still governs.
Supporting sources
No. Courts require actual voluntary consent or a specific statutory or regulatory scheme that clearly notifies participants of the implied consent. Simple occupancy or acquiescence does not suffice.
Supporting sources
…question, I will assume that, so far as the statute of limitations is concerned, an overt act done anywhere with the express or implied consent of conspirators would show the conspiracy to be continuing between the parties so consenting, and leave them open to prosecution for three years from that date. But it does not follow that…