Is Virginia’s DUI Refusal Law Constitutional? Ask the Arlington-Fairfax Attorney

Question:  I was charged with DUI and Refusal.  Is Virginia’s Refusal law constitutional?  I never affirmatively agreed to a breath test — Virginia just “implied” my consent and now I’m being punished for revoking a consent I never actually made.  Since when can one impliedly waive a constitutional right?

Answer:  The United State Supreme Court recently held that it is unconstitutional for demand a blood sample from one arrested of DUI (drunk driving) without a warrant.  The case is Missouri v. McNeely, No. 11-1425 (April 17, 2013).  In this case, the accused driver was read the Implied Consent law, refused breath and blood tests, and was taken to the hospital where he was forced to submit a blood sample.  The Court recognized that he had a 4th Amendment right to be free from unreasonable searches and seizures.  It recognized blood draws as a “search” and highlighted the intrusiveness of searches within one’s body.  And, in this case, it rejected the blanket rule that since all alcohol in one’s body dissipates over time that a per se rule needed to be adopted that warrants were never required for a mandatory blood draw upon an arrest for DUI.

What wasn’t before the court, and the question now begged, is:  If one has a 4th Amendment right to privacy in one’s blood (and presumably breath), how can governments cause people to impliedly waive these rights in advance.  Usually, a constitutional right must be waived knowingly and intentionally.  For example, look at a different constitutional right — the right to a lawyer under the Sixth Amendment.  In that context the Supreme Court has held that “[w]aiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.’” Iowa v. Tovar, 541 U.S. 77, 81 (2004) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).  Could a state eliminate DUI lawyers by passing a law saying that one impliedly waives his right to a lawyer if arrested for DUI after driving on a highway?

In Virginia, a first offense of Refusal is a civil action, not a criminal case.  The penalty is a 12 month license revocation.  This may arguably provide the necessary grounds for an exception.  Also, in the case of a Refusal, no “search” actually occurs — there is only a penalty for “revoking” a prior “implied” consent.

Challenges to the Implied Consent laws have focused on the 5th Amendment right against self-incrimination.  These have failed.  Perhaps the 4th Amendment should be tried.