June 2014 Bar Bulletin
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June 2014 Bar Bulletin

A License To Be Searched ... or Not

By Francisco Duarte


In a crowded room at a local government office, the electronic ticket counter on the wall chimes loudly, simultaneously displaying in red: "next" and "#25." A young girl jumps excitedly from her seat to have her picture taken for her driver's license.

She is a first-time licensee. None of the neurons in her brain spring to life the thought about the intense legal battles being played out in courtrooms around the nation; all arising from the mundane request and grant of a driver's license. Upon receiving her driver's license, she is deemed to have consented to a police search for evidence of intoxication should she ever be arrested for a related driving-under-the-influence crime.

But the vagaries of constitutional principles and the implied consent law are not in her mind. The only thing she can think of is getting into her car the next day and having her peers watch her drive into a space at the high school parking lot, branding her new independence.

This scene is repeated in thousands of licensing offices around the nation. And around the nation, thousands of daily DUI arrests take place, challenging the methods the police may use to obtain evidence against the driver. Until recently, police and prosecutors could count on their states' implied consent laws to obtain evidence without court intervention, such as breath, blood or urine.

In the case of Missouri vs. McNeely,1 the U.S. Supreme Court put a brake on the unfettered practice to secure blood samples without a search warrant from allegedly intoxicated drivers. In McNeely, the Court said police officers may not take blood samples from drivers who refuse to provide them voluntarily unless they have a warrant or some kind of "exigent circumstance."

Thus, the search for physical evidence of intoxication is nowhere more poignantly illustrated than when law enforcement officers requested a blood test pursuant to Washington's former implied consent law. These tests are, of course, orchestrated searches intended to reveal a specific alcohol/drug concentration to be admitted against an individual during trial in a DUI prosecution. Without the participation of the subject, this evidence would be unattainable. Thus, it is information not otherwise observable, not "in plain view," or discoverable through innocuous contact. The McNeely Court invalidated implied consent laws that permitted the taking of blood samples without a search warrant.

In Washington, the McNeely ruling was not received well by police and prosecutors. Prosecutions in the pipeline that were dependent on blood tests were in jeopardy of losing presumably their strongest evidence, such as in the notorious case of Emily Sue Falkenstein, who struck and injured a wheelchair-bound man in a crosswalk with his six-year-old niece on his lap.2

And the added step of securing a search warrant for a blood draw following an arrest was not pleasing to the police. It takes more time to contact a judge in the middle of the night and take a person to a medical facility for a blood draw.

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