Plenty of trial and appellate judges likely do not take kindly to the United States Supreme Court decisions in Missouri v. McNeely, 133 S.Ct. 1552 (2013) (confirming that blood draws for DWI cases are Fourth Amendment searches) nor Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).  (precluding criminal penalties for refusing a blood test in DWI cases, but not for refusing a breath test).

Nevertheless, both the United States Constitution and U.S. Supreme Court’s rulings must be obeyed by all lower and state courts.

Virginia’s Court of Appeals asserted this week that it complied with Supreme Court case law when permitting a warrantless blood draw in a DWI case where the defendant was neither asked whether he would take the test nor refused. I disagree. Wolfe v. Virginia, ___ Va. App. ___ (Dec. 13, 2016).

Wolfe says that the defendant had already consented to a  blood draw because Virginia statutory law says that one who drives on the Commonwealth’s roadways impliedly consents to submitting to a breath or blood alcohol test when arrested for DWI. Wolfe; Va. Code § 18.2-268.2.

However, blood tests being a Fourth Amendment search (McNeely v. Missouri, where McNeely affirmatively refused a blood test), one can only consent to a search by truly consenting, not by having an implied consent law that the driver does not know about and that the police hide from the defendant by not advising him or her about the implied consent law.

Whether a search is consensual depends on the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). Birchfield does not attack Schneckloth so any in Birchfield suggestion that implied consent laws can be sufficient to pass Schneckloth consent muster is folly.

In Wolfe, the defendant driver was arrested for DWI. At the police station, he repeatedly burped after being told that burping would prevent a reliable breath test result. Wolfe is silent about whether Wolfe was told about the implied consent law before blowing into the breathalyzer machine; he certainly was not so advised at the hospital, where he was subsequently brought for a blood test. Without anyone asking Wolfe for his consent to submit to a blood test, his blood simply was drawn.

Wolfe concluded that Virginia’s implied consent law was all that was needed to make the blood draw from him lawful, and found Birchfield backed that up. However, Birchfield‘s central issues did not include whether a warrantless blood draw is consensual based on silence of the blood draw subject, and the overall language of Birchfield and McNeely casts complete doubt on the Virginia Court of Appeals’ holding in Wolfe. 

Yes, Birchfield  does say: “Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” However, a stark difference exists between imposing civil penalties for refusing breath and blood tests and allowing such refusal to be considered in determining whether to convict a defendant for DWI, on the one hand, and permitting implied consent laws to amount to allowing warrantless blood draws from a silent DWI arrestee.

In any event, under Wolfe, to make a DWI case blood draw an unconstutitional, Fourth Amendment-violative search, the suspect must clearly say s/he refuses to have his or her blood drawn. Saying anything less than “I refuse a blood test” may not do, particularly seeing that Wolfe came out the way it did despite Wolfe’s telling the police at the station after being told he would be blood tested if he kept burping, that  Wolfe “did not like needles and did not want a blood test.”

Verbally refusing a blood test should remove any consent implied by Virginia’s implied consent law, and an arrestee must never physically resist the police nor the person drawing the blood. Of course, what good is that verbal refusal if the police officer “conveniently” does not hear the refusal or overlooks noting that refusal in his or her police report or other notes?

As an aside, how do blood draw personnel feel about taking blood from a person being forced to do so as the result of a search warrant or coercive implied consent law? Nothing, other than job security and revenue, stops hospital personnel (when the blood draw is at a hospital) from verifying whether the blood draw is being done with the subject’s true consent or only after reading any blood search warrant to confirm that it is in valid form and validly issued.

Hopefully Wolfe will seek and obtain leave to appeal in Virginia’s Supreme Court.