Virginia Code Section 18.2-268.2, commonly referred to as the Implied Consent Statute, requires those who are arrested for operating a motor vehicle on a public highway to consent to a test to determine the alcohol content of their blood. On Wednesday the U.S. Supreme Court heard oral arguments in Birchfield v. North Dakota, actually a set of three cases, that directly challenges the ability of states to impose refusal penalties in DUI cases.
Prior to the Court taking up these cases, most attorneys considered this a settled area of the law and one where new jurisprudence was unlikely. The question presented to the Court here, however, differs from past cases in that it does not concern a state’s ability to seize a sample from the defendant’s person. (Schmerber v. California, 384 U.S. 757). Instead, it challenges whether, as the defendants put the question, can a state “insist on the implied surrender of a constitutional right in return for a state-provided benefit—and whether it may impose criminal penalties on the subsequent assertion of that right by the recipient of the benefit?”
While the Court striking down such searches would cause a great deal of consternation in criminal justice circles, it seems unlikely to pose insurmountable problems considering the technology available today. Confrontation Clause litigation in Crawford v. Washington, 541 U.S. 36, caused huge changes in the way Virginia handles the admission of scientific test reports but with the passage of time their admission has once again become routine.
A similar result is likely here. We already have magistrates on duty 24 hours a day that write search warrants and they use videoconferencing and facsimile machines to communicate with police and sheriff’s departments throughout the Commonwealth. A quick retooling of the search warrant process, primarily by leveraging today’s connected technologies, and DUI prosecutions are likely to settle right back down.
We shouldn’t have long to wait; a decision is expected in June.