South Dakota's Implied Consent Statute in the Crosshairs

The U.S. Supreme Court, in its April 17th, 2013 opinion, Missouri v. McNeely, ___ U.S ___, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013), clarified that in a DUI case, an immediate warrantless blood draw is a search subject to the Fourth Amendment's constraints and the validity of the search must be determined on the basis of the totality of the circumstances of each case.

The Court stated, “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

State courts are now grappling with the status of “implied consent” laws which outline how law enforcement can obtain “consent” to warrantless blood and breath tests from persons arrested for driving under the influence and which provide consequences for arrestees who refuse to submit to the tests (often more severe than the penalties for a first time DUI conviction). The issue of whether such “consent” is constitutionally voluntary is particularly in question.

The Supreme Court of Arizona recently became the first state high court to address this question after the issuance of the McNeely opinion.  Prosecutors in the Arizona case argued that the existence of the Arizona implied-consent statute satisfies the consent exception to the warrant requirement as a matter of law.

Relying on McNeely, the Arizona Supreme Court ruled, “Contrary to the State's argument, a compelled blood draw, even when administered pursuant to § 28-1321, is a search subject to the Fourth Amendment's constraints.” The existence of circumstances justifying an immediate warrantless blood draw, the court held, must be determined on the basis of the totality of the circumstances in each case.

South Dakota's own implied consent statute, SDCL § 32-23-10 , does not limit warrantless blood and bodily fluid testing to "impaired" drivers.  Rather it includes, "Any person who operates any vehicle in this state" as being considered to have given consent when placed under arrest for a suspected DUI.  Further developments regarding South Dakota's implied consent law may be forthcoming. 

(This entry was originally written and posted by Stephanie Trask, University of South Dakota School of Law student)