Amicus Curiae Brief — Birchfield v. Dakota, 136 S. Ct. 614 (2015) (No. 14-1468)

Nos. 14-1468, 14-1470, 14-1507

In the

Supreme Court of the United States

DANNY BIRCHFIELD,

Petitioner,

Vv.

NORTH DAKOTA,

Respondent.

WILLIAM ROBERT BERNARD, JR.,

Petitioner,

Vv.

MINNESOTA,

Respondent.

STEVE MICHAEL BEYLUND,

Petitioner,

Vv.

GRANT LEVI, DIRECTOR, NORTH DAKOTA

DEPARTMENT OF TRANSPORTATION,

Respondent.

On Writs of Certiorari to the Supreme Court

of North Dakota and the Supreme Court of Minnesota

BRIEF OF THE COUNCIL OF STATE

GOVERNMENTS, NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL LEAGUE OF CITIES, U.S.

CONFERENCE OF MAYORS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

AND INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

LISA SORONEN GREGORY G. GARRE

State & Local Legal Center Counsel of Record

444 N. Capitol St., NW JONATHAN Y. ELLIS

Suite 515 BENJAMIN W. SNYDER

Washington, DC 20001 LATHAM & WATKINS LLP

(202) 434-4845 555 11th Street, NW

— 1000 on

ashington, 20004

(202) 637-2207

Gregory.Garre@|w.com

Attorneys for Amici Curiae

__—_—_—_—$_——_—_—_—_$——————————————— _______..

TABLE OF CONTENTS

Page

TATE TE OP DUTT TI cccssienceesicceenssecetieninare iii

INTERESTS OF AMICI CURIAE ..ccccccccesccesssesssvesseeeoes 1

SUMMARY OF ARGUMENT. ........:cccccoscssssssescocssseecsseeeee 2

pS ee, CR RR SOAR 5

I. THE IMPLIED CONSENT LAWS

ARE A LONGSTANDING, COMMON

SENSE, AND PERMISSIBLE

RESPONSE TO THE GRAVE

THREAT OF DRUNK DRIVING...................... 6

A. Drivers Must Comply With

Myriad, Reasonable Conditions

Anytime They Voluntarily Use

The Public’s Roadway6..................:-:s+000++ 7

B. Implied Consent Is An Exception

To The Fourth Amendment’s

Warrant Requirement.....................0000 14

C. The Implied Consent Laws Do Not

Impose An _ Unconstitutional

TID rst sncrtcinsiesitcnbiiiicaniaacildeiauidiabin bcaaiaatatins 18

Il. SUBJECTING PETITIONERS TO

CRIMINAL PENALTIES FOR

VIOLATING THE IMPLIED

CONSENT LAWS DOES '- NOT

VIOLATE THE FOURTH

OTS nitinsitnccitcieenscissniniticninihiadeasiiinbiidiniiia 24

ii

TABLE OF CONTENTS—Continued

Ill. THE IMPLIED CONSENT LAWS

PASS THE ULTIMATE FOURTH

AMENDMENT TOUCHSTONE OF

REASONABLENESS .............cc.ccssssssesessersesenseees 28

DY etic ttcsnsinittnitaicininntninmiemicnntinaaniinnmenetn 30

TABLE OF AUTHORITIES

Page(s)

CASES

Agency for International Development v.

Alliance for Open Society International,

Inc.,

ls aie ee CEE icctcnicnennitideoricicinteinitinisbempintediiens 19

Barlow v. United States,

Be IE dirchtereteninscoinnntintiiianonanienedeiinmnimbasteinesiaig 11

Breithaupt v. Abram,

ee ee I ctneritnantcicnscnnnnsinaniinnteanssiniini) 6, 15, 18

Brigham City v. Stuart,

Se a TT cecnsnciananseebasesiceasienivinndinionesidnabantpeecata 18

City of Los Angeles v. Patel,

ee ee eee 14

Dolan v. City of Tigard,

Be ee I etsceinreninccnsenantntncesiniciieiamnnbiieg 19, 20, 23

Florida v. Jardines,

2 IER eR nena Bek 16

Florida v. Jimeno,

ITD cesiksissisasitsntieisicdeniihiadeasnceitieicieanci 20

Georgia v. Randolph,

Se ey TIDE Sicilisicticienietsenenacinconeriaiedactaeiiinaaatiitiaspsiali 16

Koontz v. St. Johns River Water Management

District,

Ee eee 19

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Landmark Communications, Inc. v.

Virginia,

III ciictsicrtiinrnsscsinininnsitaniteesiciettiinasiintitaiduaiatan 27

Mackey v. Montrym,

ee es Be I iitincectieitccisriitdsieeneeomiosiiinnesiaasiiea 6, 20, 23

Michigan Department of State Police v. Sitz,

gL Renee 19, 22

Missouri v. McNeely,

ee passim

Schmerber v. California,

ee a, SO IE cetdiictnsiniisciveinesnnnnniinnnddanpiionditia 5, 21, 28

Schneckloth v. Bustamonte,

Be es ID niieiscsiicicentcnsiivinnnesancineninanen 7, 11, 14, 21

Skinner v. Railway Labor Executives’

Association,

EE icccineninnsincntsntinnmniicanenniesonininniainiel 20

South Dakota v. Neville,

Se ED aiesectccniccicniatesistnctninctinncinetel passim

United States v. Biswell,

ee ee EE icicnstnineidenniccinieesieniietaieamemnnnndiinnsiinn 17

United States v. Drayton,

8 een 21

United States v. Matlock,

ee ee ee UE cnitntetataciecnenreeinsteemamseniniiininementian 16

Vv

TABLE OF AUTHORITIES—Continued

| Page(s)

Whren v. United States,

Se ee ee atieienenscanhrinnibtianeesisiemaraasamnsionietah 10

Winston v. Lee,

ee ee ee I etcscrersiecnehienninieiernisnnntingemneionnesinets 28

CONSTITUTIONAL AND STATUTORY

PROVISIONS

C7: CURIE, CIE, FEV Ee seccnnteccensaietnterniccnenisatninnmnniii 25

Be Oe ciesctensincenncercnecnmeniemnmientiiinesinnmnetin 5

ee TI. © ee tctiedeecresisctenstatenninicnviniciatiioneineriennvinenie 8

Re Be IIIT clesinisnciensiiniapnisncnesesionatiniinetemabtootnabaes 9

NB RO oercnteiccescecpsinercimenncumnienntanati 8

SR: SOD, Fy I cinsnstntctsiniapeninmnnesenniienasennecionseniniatien 9

, Tas Fe icrtrcerccinsansitiniectinibicbsinnnpeninnmmaipenenanas 9

I Tis TED vitiiniteicacicistinncniletsstpiccssibonnnmmecsiccneagten 9

SE Fe Fe irccscentinvniceninecsestsneisuinnsnaiannatenndinatoonniinn 9

Be, SOG. BS CPO sins cecinsinstntiesnitensctstiontesnicmeminnesiimammncisans 9

SE, SRE. TID icinttiinscnsenicvennininisonnincgstlitanvenmetineaene i)

een, SER... © SII cevssccnsccncssesvcesssesntontcntensinccincnmnnnghienins 9

Beh, TORU, BF IE tntencsetcsntnansnnsvntitonisaniantgpimaieaionenial 8

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Bs Es Sy SPI csinsisincsnicheriicitoniiseisiisntialandeiisdebarlesiessiaay 25

ee 22, 25

FE, SEs FT ED sinsicinicittccenisniesinacsncissdascngbianenbsinni 25

Ss Nie OF NL Uti iiisicieteiniiedintniheenineiendaclanlninniigavaiuenctil 25

| ee 10, 20

Sees Ses © UPON nis cninsecnccicsccescssemsecinmninsiansininiintis 22

Ses Stas OF SNE sevstinsocincsiciishinianstiondninsinitietisjeiiiieliite 12

SR: CEE See ertiinncnsicinicciiieniisinsansenensininniaisibeliits 20

a Pe Se SN nissianscenissisiicestiiseiideniniencenitaieaniiinindinniin 25

as Oe iin ttbincginnapeiineitinisaintiantiats 25

EE Ns Oh Oe piiectcticesteviscesscirinniseesiniinsetunsedhseiaideabaneiilicael 8

ae NS Op Br Ee cinioicsininresndestatcetinintatiniapitetnnicticadiiinialiessintel 8

et: Gs: 1 SW Dh cciniscsssnseenisanisnsiieestinsnpoenienpenimnniiinetnti 15

Mesh RII sisiicitcinrecisaninsovmsnanensesinnsia scsaninlaenaitaiaelie 8

ee a Oe ee a ccaccnscnsdestenninlatecnietuapiicitiniinnitiniminncinebinis 8, 12

Pe as Ee CPI bilitcseinisininnictiestnialdinsesaiatiioneiaions 8

ect Sie: CANE Ty IG ccscasccctnovennilovssinstncniinhtinttocniesecsinies 8

Scans Wes CEI i 8

vii

TABLE OF AUTHORITIES—Continued

Page(s)

WEDD. Cot, Coin 9 SG BD. wccccecccecosersceccenssusscsccscosssees 8, 12

N.D. Cent. Code § 39-06-14(2) ..............scssssssssessersensenses 15

ET, Coa, Cane Bi eres erisccnsiniesitsitascnecensinnicsvvin 8

N.D. Cent. Code § 39-O08-01(1)(a) .......sccccceesecssereeeeneerenees 25

N.D. Cent. Code § 39-08-01(1)() ........cccccccscserseeeenes 22, 25

N.D. Cent. Code § 39-08-01(2) .........cssccsssssesreeseeesensensenees 25

ND. Cont. Comin § S-G GiGG) ccseceecesencacosccssecesecccsenssosevees 25

N.D. Cent. Code § 39-08-01(5)(a)(1)........ccccecseeeeeeereeeenees 25

N.D. Cent. Code § 39-08-01(5)(D) ..........sssessssseseesseeensens 12

PETA, Cok; Coin © Si i a ceectssesensntesniennnnecentinsennenistiniins 9

BED. Crmnt., Coan © I ED sccesncsicesinsencssicesasocseccessnennssnsnnnes 8

IVD. Coemnt, Contin § SGD BB w. ascccccnsesccencccscesenscrssvescescosscnscnsse 9

ETD. Corea, Cain SI asses eseccescsionsesccsesnnnsscmnemestinani 8

DED Comme, Coie 5 GB BD oeceresiseccesncaninnenssccnscosonssensacive 8

N.D. Cent. Code § 39-20-01(1) ..........scssesseseeesesees 10, 20, 22

N.D. Cont. Code § 30-20-0102) ...........r.erecccosccscoscseccccsseeees 10

N.D. Cent. Code § 39-20-01(3)(a) .........ccecceseeseeeereeneeenenes 12

Rg Re AE eer veneers 10

TABLE OF AUTHORITIES—Continued

Page(s)

N.D. Cent. Code § 39-21-O03(2) ..........-cccscecccccnserrencenseeeeaseee )

DE CAR, CO © BD ccrcrsrcccensseccscnsinsesenrecncvemnvesons 9

ee a Ee Oe aietttitcessetctncvcetemnnnnninaninenicinasinent 9

a ne I siipictecenscinsveninacenvdienienntpenseninanssies 9

Re eS £ 9

es CEO re i herteccecesesescnnenncetntnnmncneientnetc 9

OTHER AUTHORITIES

Tony Dutzik & Phineas Baxandall, U.S. PIRG

Education Fund, Frontier Group, A New

Direction: Our Changing Relationship

with Driving and the Implications for

FE 6 Fe Ge cetintistthineiciniesereninisiinens 13

1 Wayne R. LaFave, Search & Seizure (5th

ed.), Westlaw (database updated Oct.

STII ssciccsnsueiisticndpaisaiandasshenedibionietiuaiaciesiiammeuaaepmeiinncseneinaianiaeiten 16

National Highway Traffic Safety

Administration, U.S. Department of

Transportation, DOT HS 812 102, Traffic

Safety Facts: Alcohol-Impaired Driving

(2014), http://www-nrd.nhtsa.dot.gov/

ee iicieniesndsstcatngnneddedeseienissevisinisieenisinoennmmentit 21

1X

TABLE OF AUTHORITIES—Continued

Page(s)

National Highway Traffic Safety

Administration, U.S. Department of

Transportation, The Economic and

Societal Impact of Motor Vehicle Crashes,

2010 (Revised) (2015), http://www-

nrd.nhtsa.dot.gov/pubs/812013. pdf ..............ccccceeeeeeees 7

Michael Sivak & Brandon Schoettle, Update:

Percentage of Young Persons With a

Driver’s License Continues to Drop, 13

Traffic Injury Prevention 341 (2012)..................0. 13

Robert B. Voas et al., /mplied-Consent Laws:

A Review of the Literature and

Examination of Current Problems and

Related Statutes, 40 J. Safety Research 77

INTERESTS OF AMICI CURIAE!

Amici are organizations that represent the

interests of state and local governments.

The Council of State Governments (CSG) is the

Nation’s only organization serving all three branches of

state government. CSG is a region-based forum that

fosters the exchange of insights and ideas to help state

officials shape public policy. This forum offers

unparalleled regional, national, and _ international

opportunities to network, develop leaders, collaborate,

and create problem-solving partnerships.

The National Association of Counties (NACo) is the

only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the Nation’s 3,069

counties through advocacy, education, and research.

The National League of Cities (NLC) is the oldest

and largest organization representing municipal

governments throughout the United States. Its

mission is to strengthen and promote cities as centers

of opportunity, leadership, and governance. Working

in partnership with 49 state municipal leagues, NLC

serves as a national advocate for the more than 19,000

cities, villages, and towns it represents.

1 No counsel for a party authored this brief in whole or in

part; and no such counsel or any party made a monetary

contribution intended to fund the preparation or submission of this

brief. No person or entity, other than amici, their members, and

their counsel, made a monetary contribution intended to fund the

preparation or submission of this brief. All parties have provided

consent to this filing, in letters that have been lodged with the

Clerk of the Court.

2

The U.S. Conference of Mayors (USCM), founded in

1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people, which includes over 1,200 cities at

present. Each city is represented in USCM by its chief

elected official, the mayor.

The International City/County Management

Association (ICMA) is a non-profit professional and

educational organization consisting of more than 9,000

appointed chief executives and assistants serving

cities, counties, towns, and regional entities. I[CMA’s

mission is to create excellence in local governance by

advocwing and developing the professional

management of local governments over the world.

The International Municipal Lawyers Association

(IMLA) has been an advocate and resource for local

government attorneys since 1935. Owned solely by its

more than 3,000 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters.

Amici are all too familiar with the impact of drunk

driving on American communities, families, and

citizens. Together, amici have helped state and local

governments to develop strategies for preventing

drunk driving that fit local needs and conditions—

strategies that include implied consent laws like the

ones at issue here. A decision holding that such laws

are unconstitutional would deny state and _ local

governments a longstanding and critical tool in their

ongoing efforts to combat drunk driving.

SUMMARY OF ARGUMENT

These cases come to this Court against the

backdrop of three undeniable facts. First, drunk

driving imposes a terrible toll on America, killing

3

thousands and shattering the lives of tens of thousands

of others each year. Second, for decades, “all 50 States

have adopted implied consent laws that require

motorists, as a condition of operating a motor vehicle

within the State, to consent to [blood-alcohol] testing if

they are arrested or otherwise detained on suspicion of

a drunk-driving offense.” Missouri v. McNeely, 133 S.

Ct. 1552, 1566 (2013) (plurality op.). And third, this

Court for decades has viewed these laws as

“unquestionably legitimate.” South Dakota v. Neville,

459 U.S. 553, 560 (1983). Petitioners’ argument that

these important laws have been unconstitutional all

along, under a Fourth Amendment theory, should be

rejected.

Implied consent laws do not impermissibly burden

motorists’ Fourth Amendment rights. Consent is a

well-forged exception to the warrant requirement.

And contrary to petitioners’ claims, there is nothing

unusual about consent being implied through conduct

rather than expressed through words. Just as a

homeowner who opens a path from the sidewalk to the

door impliedly consents to the police walking that path

in accordance with local customs, so too does the

homeowner who ventures out onto the highway

impliedly consent to a blood-alechol test required by

state law as a condition of using the roads. Nor can

petitioners vitiate consent by claiming that they did

not know about the implied consent laws. Ignorance of

the law is not a defense to speeding, or any other law,

and it is not a defense to the laws at issue here.

Petitioners invoke the “unconstitutional conditions”

doctrine to argue that this consent is unconstitutionally

extracted. But that argument flunks both the

“essential nexus” and “rough proportionality” factors

4

that this Court has looked to in applying the doctrine.

There can be no serious dispute about nexus. The

condition these laws impose (consent to a minimally

invasive blood-alcohol test) directly advances a

powerful government interest (saving lives) and has a

strong connection to the privilege conferred

(permission to drive). Nor can there be any real

dispute about proportionality: whereas the laws

typically require no more than a few breaths into a

tube, the costs of drunk driving are staggering.

Petitioners emphasize that the penalties at issue in

the case are criminal, but—while it is up to each State

to decide what penalty is appropriate—there is no

basis for this Court to draw a distinction between

implied consent laws that impose administrative versus

criminal penalties. The chosen penalty is not a part of

the condition—it is the means of enforcing the

condition. No one is forced to agree to go to prison in

order to get a driver’s license. And it makes perfect

sense to equalize the penalty for reneging consent with

the penalty that the driver is trying to avoid by

refusing to take the test. Otherwise, the State would

just be creating an incentive to refuse the test, and

reducing the deterrent effect of its drunk-driving laws.

Prohibiting States from doing anything more than

suspending a driver’s license when a motorist

withdraws consent after being pulled over for drunk

driving would also give drivers, in effect, a free pass.

Rather than being forced to make clear up front that

they are unwilling to accept the State’s (constitutional)

condition for using the State’s roads, drivers could

simply take the license knowing that the worst thing

that will happen to them if they refuse a test is that

they will be placed in the same position they would

5

have been in had they been forthright about their

unwillingness to accept the condition in the first place,

and been denied a driver’s license to begin with.

The implied consent laws also pass the Fourth

Amendment’s ultimate touchstone of reasonableness.

Indeed, implied consent laws were enacted to allow

States to enforce their drunk-driving laws without

having to resort to forced, non-consensual blood draws

to collect evidence. And the facts that these laws have

been in effect across the Nation for decades, and that

this Court has repeatedly upheld them against

challenge and referred to them only in approving

terms, underscores their reasonableness. Petitioners

have provided no basis for this Court to suddenly

reverse course and deny the States this longstanding

and critical tool in the fight against drunk driving.

ARGUMENT

Implied consent laws like the ones at issue in these

cases have existed in this country for half a century.

All fifty States and the federal government have

adopted some version of these laws. See Missouri v.

McNeely, 133 S. Ct. 1552, 1566 (2013) (plurality op.); 18

U.S.C. §3118. Passed in the wake of this Court’s

decision in Schmerber v. California, 384 U.S. 757, 771

(1966), as an alternative to forcing blood draws for

alcohol tests, the laws serve as a vital weapon in these

States’ and the federal government’s ongoing battle

against drunk driving—a threat that claims thousands

of lives each year and injures tens of thousands more.

This Court has heard, and rejected, prior

constitutional challenges to these laws. See, e.g., South

Dakota v. Neville, 459 U.S. 553, 559, 563-64 (1983)

(upholding South Dakota’s implied consent law against

6

a Fifth Amendment challenge); Mackey v. Montrym,

443 U.S. 1, 3, 18-19 (1978) (upholding Massachusetts’s

implied consent law against a due process challenge);

see also Breithaupt v. Abram, 352 U.S. 482, 435 n.2

(1957) (approving of Kansas’s implied consent law).

And just three Terms ago, a plurality of the Court

expressly endorsed these laws as valid and effective

“legal tools to enforce ... drunk-driving laws and to

secure [blood-alcohol] evidence without undertaking

warrantless nonconsensual blood draws.” McNeely

133 S. Ct. at 1566.

These cases are different in two principal respects.

First, petitioners ground their claims in the Fourth

Amendment. And, second, they focus their challenges

on implied consent laws that trigger criminal penalties,

as opposed to only administrative and civil penalties.

Neither distinction justifies an about-face by this Court

on the validity of these longstanding laws. The Fourth

Arendment, with its over-arching “reasonableness”

requirement and well-settled “consent” exception, is an

unlikely provision for invalidating these laws,

especially compared to the Fifth Amendment and Due

Process Clause. And there is no basis for drawing a

constitutional line between penalizing drivers by

taking away their licenses and penalizing them in the

same way they would be for the offense for which they

are trying to evade prosecution by reneging on their

consent. The judgments below should be affirmed.

I. THE IMPLIED CONSENT LAWS ARE A

LONGSTANDING, COMMON SENSE, AND

PERMISSIBLE RESPONSE TO THE GRAVE

THREAT OF DRUNK DRIVING

It is common ground that, under the Fourth

Amendment, a search generally must be accompanied

7

by a warrant. Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973). But it is also beyond dispute that one

of the “well settled” exceptions to the warrant

requirement “is a search that is conducted pursuant to

consent.” Jd. In each of the consolidated cases, the

State plainly required consent to a blood-alcohol test

from anyone who chose to operate a motor vehicle on

public roads. Each petitioner accepted the terms of

those laws when they voluntarily took to the roads.

There is nothing remarkable about implying such

consent. There is nothing unconstitutional about that

condition in the abstract. And there is nothing

problematic about enforcing that commitment here.

A. Drivers Must Comply With Myriad,

Reasonable Conditions Anytime They

Voluntarily Use The Public’s Roadways

1. Driving is an integral part of our country’s

transportation system and way of life, but there is no

denying it is a highly dangerous activity. Anyone who

gets behind the wheel of a 4000-pound mass that moves

at speeds of up to 70 miles per hour (and beyond) poses

a threat not just to the operators of the vehicles, but to

all motorists, pedestrians, and property along their

way. In 2010, 32,999 people died in automobile

accidents on the Nation’s roads, another 3.9 million

people were injured, and 24 million vehicles were

damaged. National Highway Traffic Safety

Administration, U.S. Department of Transportation,

The Economic and Societal Impact of Motor Vehicle

Crashes, 2010 (Revised) 1 (2015), http//www-

nrd.nhtsa.det.gov/pubs/812013.pdf. These losses and

injuries impose devastating and multifaceted costs on

American families, communities, and States.

8

Understandably, al] States condition use of public

roadways on an extensive set of rules designed to

promote public safety. To be on the roads at all, every

driver generally must have a valid license. See, e.g.,

Minn. Stat. §§ 171.02, 171.03; N.D. Cent. Code §§ 39-06-

01, 39-06-02. To obtain such a license from the State of

Minnesota, an individual must submit to an

examination that includes a test of the applicant’s

“knowledge of ... traffic laws [including] the legal

penalties and financial consequences resulting from

violations of laws prohibiting the operation of a motor

vehicle while under the influence of alcohol,” and any

“other physical and mental examinations as _ the

{Commissioner of Public Safety] finds necessary.”

Minn. Stat. § 171.13. The requirements for a North

Dakota license are nearly identical. See N.D. Cent.

Code § 39-06-13.

As any driver well knows, once on the roads

themselves, the requirements and conditions imposed

by the States are similarly comprehensive. All drivers

must carry their licenses “in the[ir] immediate

possession at all times” and “shall physically surrender

[it] upon demand of any court, police officer, or a field

deputy or inspector.” N.D. Cent. Code § 39-06-16; see

also Minn. Stat. § 171.08. They are required to carry

liability insurance, and be ready to produce proof of

that insurance on command at any time. See Minn.

Stat. § 169.791(2); N.D. Cent. Code §§ 39-08-20, 39-16.1-

11. And they must abide by all the “general rules of

the road,” N.D. Cent. Code ch. 39-10, like speed limits,

traffic lights, and traffic signs. See, e.g., Minn. Stat.

§§ 169.06(4), 169.14; N.D. Cent. Code § 39-09-02.

Every motor vehicle must be equipped with, among

other things, headlights, tail hights, and turn signals of

9

a specific brightness, color, and often height. See, e.g.,

N.D. Cent. Code § 39-21-03(2) (headlights must be “at a

height ... not more than fifty-four inches nor less than

twenty-four inches”); id. § 39-21-04(1) (tail lights must

“emit a red light plainly visible from a distance of one

thousand feet”); id. §§ 39-21-06, 39-21-19 (front turn

signals must “display a white or amber light . . . visible

from a distance of not less than three hundred feet”;

rear turn signals “red or amber” and visible from the

same distance); see also Minn. Stat. §§ 169.49, 169.60

(headlights); zd. § 169.50 (tail lights); id. § 169.57(2)

(turn signals).

Drivers and front-seat passengers must always

“buckle up”—a requirement that initially was viewed

as a significant restraint on personal freedom (if not an

outright “seizure”) but has been accepted as its safety

benefits have become clear. See Minn. Stat. § 169.686;

N.D. Cent. Code § 39-21-41.4. Children must ride in

specialized car seats. See Minn. Stat. § 169.685(5); N.D.

Cent. Code § 39-21-41.2. Drivers are prohibited from

using smart phones to compose, read, or send text

messages or emails while driving—even at stop

lights—except in cases of emergency. See Minn. Stat.

§ 169.475; N.D. Cent. Code § 39-08-23. In the case of an

accident, they must provide the other individuals

involved with their name, address, license, registration,

and insurance information—and render to any injured

person “reasonable assistance.” Minn. Stat. § 169.09(3);

N.D. Cent. Code § 39-08-06.

A list of similar requirements, rules, and conditions

could go on and on. Little wonder that the Court has

previously described the use of automobiles as “so

heavily and minutely regulated that total compliance

with traffic and safety rules is nearly impossible.”

10

Whren v. United States, 517 U.S. 806, 810 (1996).

Indeed, there may be no other activity in which so

many Americans so regularly engage that is so closely

regulated. Every day Americans commit themselves

to be bound by these rules and regulations when they

get behind the wheel—to protect their own safety as

well as the safety of those they will come across.

2. The cases under review challenge just one of

these myriad conditions adopted in every State to

enhance safety on our Nation’s roads—the condition

that anyone operating a motor vehicle on public roads

consent to a blood-alcohol test where there is probable

cause to believe they were driving under the influence

of aleohol. See N.D. Cent. Code §§ 39-20-01(1), (2), 39-

20-01.1; Minn. Stat. § 169A.51(1). In the abstract, that

hardly seems like an unreasonable trade-off. And, in

most respects, this condition is not meaningfully

different than the hundreds of others drivers are bound

to follow every day. Any time an individual voluntarily

takes to the roads, he is required to abide by the

condition imposed by these laws as with all the

others—and thus he voluntarily consents (and agrees

not to withdraw that consent) to blood-alcohol tests on

the laws’ terms.

It is true, of course, that this condition, unlike many

(though not all) of the others listed above, implicates

the Fourth Amendment rights of drivers to be free

from unreasonable searches. There is no dispute that

the blood-alcohol tests these laws require are

“searches” within the meaning of the Fourth

Amendment—whether they involve breathing into a

tube or drawing blood. Thus, to be lawful in the

absence of a warrant or some other exception, the tests

must be performed pursuant to consent “voluntarily

1]

given, and not the result of duress or coercion, express

or implied.” Schneckloth, 412 U.S. at 248.

But there is no basis to conclude that the implied

consent given here was anything but voluntary. No

State forces anyone to drive on their public roads. And

no petitioner claims—nor offers any reason to

believe—that the circumstances he faced here were

unique in that respect. Indeed, despite their insistence

that consent be determined by “careful scrutiny of all

the surrounding circumstances,” Birchfield Br. 21

(citation omitted), they offer virtually no details about

their specific circumstances at all. By all appearances,

petitioners enjoyed the privilege of driving on North

Dakota’s and Minnesota’s public roads on their own

volition. And because they did, they were bound to

abide by the rules and conditions that come with

enjoying that privilege, including consenting to and

promising not to withdraw consent to blood-alcohol

tests in the circumstances presented here.

Petitioners protest that all drivers may not know of

each State’s implied consent laws when they enter its

public roadways—though they conspicuously fail to

claim that was true here. See id. at 22. But it has long

been settled that individuals are presumed to know the

laws that govern their conduct. See Barlow v. United

States, 32 U.S. 404, 411 (1833) (describing the “whole

course of the jurisprudence, criminal as well as civil, of

the common law” as_ establishing the point).

Petitioners offer no reason to abandon that ancient

principle. And they are no more free to claim that they

did not know of the condition at issue than they are to

claim that they did not know it was against the law to

“text while driving.”

12

Indeed, “ignorance of the law” is a particularly

weak excuse in this context and for these petitioners.

In order to legally drive at all, States generally require

their citizens to pass an examination specifically testing

their knowledge of the traffic laws, as is true in both

these States. See Minn. Stat. § 171.13; N.D. Cent. Code

§ 39-06-13. Every State in the country has adopted a

similar requirement of implied consent to blood-alcohol

tests.2 And this Court itself has repeatedly referred to

these laws in its publicly avalable decisions in

approving terms.

For their part, petitioners are presumably well-

aware of the consent required by their States’ laws.

Bernard has four drunk-driving convictions since 2006.

See Bernard Pet. App. 4a & n.l. Both Beylund and

Birchfield appear to be repeat offenders as well. See

Beylund Br. 3 (citing applicable administrative

sanction pertaining to offenders with prior

suspensions); Birchfield Pet. App. 20a (imposing

minimum sentence applicable to second-time

offenders); see also N.D. Cent. Code § 39-08-01(5)(b).

The arrests that initiated these cases were not the first

time petitioners beard the implied consent advisory

required by these laws. See N.D. Cent. Code § 39-20-

01(3)(a); Minn. Stat. § 169A.51(2).

Petitioners emphasize that consent is required by a

“statutory scheme.” See Birchfield Br. 21-22 (“Consent

is no consent at all if the person giving it is forbidden

from declining ....”). That is true, but beside the

2 For that reason, ignorance of the law is as unavailing for

the driver who crosses state lines as the driver who stays in State.

Cf. Birchfield Br. 22. In any event, petitioners in these challenges

were stopped while driving only within their own State.

13

point. No one is “forbidden from declining.” Consent is

required only of individuals who choose to drive on

public roads in North Dakota and Minnesota, just like

subjecting oneself to examination is required for the

same privilege or consent to a search of one’s person

and luggage is required only of individuals who choose

to board an airplane. The salient point is that, while no

one disputes the importance of driving to many, no one

is required to drive. As long as the decision to drive, or

not, is voluntary, so is the consent that follows.

Petitioners assert tat, even if consent follows from

the act of driving, driving itself is simply too important

a privilege for anyone to avoid—thus vitiating any

consent. See id. at 22-23. While no one disputes the

importance of driving to many if not most Americans,

this argument cannot be accepted. For starters, while

the strong majority of Americans older than 16 years

do, millions of Americans do not. Public transportation

systems continue to improve across the country.

Millions of Americans have taken to using alternatives

like Uber. And, in fact, recent studies indicate that

driver’s licenses are on the decline across the country

among nearly all age groups.* The fact that millions of

3 See, e.g., Michael Sivak & Brandon Schoettle, Update:

Percentage of Young Persons With a Driver's License Continues

to Drop, 13 Traffic Injury Prevention 341, 341 (2012) (noting a

recent reduction in the “proportionate number of driver’s licenses

for people of all ages (except for small increases for those between

25 and 29, and over 70)”); see also Tony Dutzik & Phineas

Baxandall, U.S. PIRG Education Fund, Frontier Group, A New

Inrection: Our Changing Relationship with Driving and the

Implications for America’s Future 1 (2013) (“The Driving Boom is

over.”).

14

Americans choose not to drive alone defeats this

argument, at least as a general matter.

Moreover, the millions of Americans who do choose

to drive are not actually coerced, “by implied threat or

covert force,” into doing so. Schneckleth, 412 U.S. at

228. (Anyone who claims otherwise is free to argue

that they have been coerced based on particular facts

or circumstances not presented here.) And petitioners’

argument—that the “practical necessity” of driving

makes any conditions on that privilege coercive—

would apply not only to implied consent laws with

criminal enforcement mechanisms, but also (indeed,

especially) to laws that punish refusal to submit to a

test by suspending a driver’s license. But this Court

has described such laws as “unquestionably

legitimate,” recognizing that a hard choice is not the

same as coercion. Neville, 459 U.S. at 564.

Of course, there remains the question—addressed

in Part I.C. below—whether requiring voluntary

consent to a blood-alcohol test impermissibly burdens

petitioners’ Fourth Amendment rights. But there is no

serious question that, on the facts here, petitioners

voluntarily provided the required consent.

B. Implied Consent Is An Exception To The

Fourth Amendment’s Warrant Requirement

That consent justifies a warrantless search under

the Fourth Amendment. Consent is a “well settled”

exception to the Fourth Amendment’s warrant

requirement. Schneckloth, 412 U.S. at 219; see City of

Los Angeles v. Patel, 185 S. Ct. 2448, 2454 (2015).

Petitioners make much of the fact that, under these

laws, consent is “implied” (at least in the first instance)

through conduct—i.e., by driving on public roads—not

15

provided expressly in written or verbal form. But

implied consent is still consent, and there is no reason

that consent cannot be implied through conduct.

This Court long ago recognized that “{i]t might be a

fair assumption that a driver on the highways, in

obedience to a policy of the State, would consent to

have a blood test made as a part of a sensible and

civilized system protecting himself as well as other

citizens not only from the hazards of the road due to

drunken driving, but also from some use of dubious lay

testimony.” Breithaupt, 352 U.S. at 485 n.2. There, the

Court was referring to the fact that consent might be

implied in the abstract. Here, it is certainly “fair” to

imply consent in accordance with an explicit condition

of which al] residents are presumed to be aware.

Contrary to petitioners’ assertion, implying consent

is by no means foreign to this Court’s Fourth

Amendment jurisprudence. Birchfield Br. 26. The

Court has, for instance, recognized implied consent to

enter for Jaw enforcement purposes’ the

4 It is also far from clear that the consent is not in fact

express in many if not most cases. For example, most if not all

States, including Minnesota and North Dakota, require applicants

to actually sign their driver's licenses. See Minn. Stat.

§ 171.07(1Ma) (“No license is valid unless it bears the usual

signature of the licensee.”); N.D. Cent. Code § 39-06-14(2) (same).

That signature is fairly viewed as express consent to abide by the

legal requirements for driving in the State. In addition, some

States actually reiterate the “implied consent” requirement on the

license itself. The back of a driver’s license in Maryland, for

example, states that, “[d]riving in Maryland implies consent to

chemical testing for intoxication as required by law. Longer

license suspensions may result from refusal to be tested.” Surely

that statement, coupled with an applicant’s signature on the front

side of the license, amounts to express consent.

16

constitutionally protected areas around one’s home—

one of the places where the Fourth Amendment’s

protections apply with the greatest force. In Florida v.

Jardines, “it [wa]s undisputed that the detectives had

... [entered] the constitutionally protected extension of

Jardines’ home” without express consent of any kind.

133 S. Ct. 1409, 1415 (2013). Yet the Court went on to

consider “whether he had given his leave .. . implicitly

. . for them to do so.” Jd. “A license may be implied

from the habits of the country,” it explained. /d.

(emphasis added) (citation omitted); see also 1 Wayne

R. LaFave, Search & Seizure §2.3(c) (5th ed.),

Westlaw (database updated Oct. 2015) (“{(CJourts have

held ‘that police with legitimate business may enter the

areas of the curtilage which are impliedly open to use

by the public ... .”” (citation omitted)).

The entire Fourth Amendment doctrine of third-

party consent is based on similar “assumptions” and

“common understandings” about social

arrangements—concepts far more abstract than the

concrete terms on which consent is implied under the

laws at issue here. See, e.g., Georgia v. Randolph, 547

U.S. 103, 111 (2006) (“[S]Jhared tenancy is understood to

include an ‘assumption of risk,’ on which police officers

are entitled to rely .. . .”); United States v. Matlock, 415

U.S. 164, 171 n.7 (1974) (“[I]t is reasonable to recognize

that any of the co-inhabitants has the right to permit

the inspection in his own right and that the others have

assumed the risk that one of their number might

permit the common area to be searched.”).

Petitioners are thus incorrect when they argue that

the “only circumstances in which this Court has ever

accepted a version of ‘implied’ consent under the

Fourth Amendment is in the administrative inspection

17

context.” Birchfield Br. 26. Indeed, the Court’s

administrative inspection cases do not turn on consent

in the relevant sense at all. Those cases define a

distinct exception to the warrant requirement. See id.

at 28. Where it applies, “the legality of the search

depends not on consent,” but on the authority of the

regulatory regime. United States v. Biswell, 406 USS.

311, 315 (1972) (emphasis added). For that reason,

petitioners’ extended discourse about the various

intricacies and requirements of the administrative

search doctrine is largely irrelevant. See Birchfield Br.

26-29.

Petitioners contend that “allowing implied-consent

statutes to constitute a per se, categorical exception to

the warrant requirement would make a mockery” of

this Court’s consent cases. Jd. at 25 (citation omitted).

But no one is arguing for a per se, categorical exception

to the warrant requirement—or even a particularly

broad exception—here. Accepting implied consent like

the sort at issue in these cases will not give States free

reign to require such consent for any and all searches

as a condition of enjoying any and all privileges. . The

implied consent laws at issue here are precisely

tailored to the problem at hand—drunk driving.

Even where States have an absolute right to deny a

privilege or benefit, this Court’s “unconstitutional

conditions” doctrine (discussed next) prohibits them

from conditioning access to those privileges or benefits

on unrelated or unreasonable conditions, including

implied consent to unrelated or unreasonable searches.

They could not, for example, condition driving on

consent to a search of one’s home (or even the trunk of

one’s car), as it would have no general relation to the

privilege at issue. Nor could they condition driving on

18

consenting to a wide-ranging search of an individual’s

DNA, as the intrusion of privacy such a search would

entail would far exceed any value gained in ensuring

the safety of the roads. The implied consent laws at

issue here, by contrast, are limited to a narrow context,

in which the State’s interests are particularly strong

and carefully limited to the threat at hand.

Ultimately, the “touchstone of the Fourth

Amendment is ‘reasonableness.” Brigham City v.

Stuart, 547 U.S. 398, 403 (2006). Implying consent in

this context is plainly reasonable. Indeed, this Court

observed decades ago that implying such consent

would be “sensible and civilized,” especially given “the

hazards of the road due to drunken driving.”

Breithaupt, 352 U.S. at 435 n.2. Decades of the use and

societal acceptance of these laws make them only more

“sensible and civilized” today. And the “hazards” of

drunk driving have not diminished in the 50-plus years

since the Court made that remark—to the contrary,

they have only come into sharper focus.

C. The Implied Consent Laws Do Not Impose

An Unconstitutional Condition

1. The only remaining question is whether the

implied consent laws nevertheless place an

unconstitutional condition on the exercise of Fourth

Amendment rights. Relying on a pair of nearly thirty-

year-old law review articles, petitioners argue that

“the ‘government may not grant a benefit on the

condition that the beneficiary surrender a

constitutional right.” Birchfield Br. 33 (quoting law

review article). But as petitioners themselves seem to

acknowledge, that is a gross oversimplification. The

“unconstitutional conditions” doctrine does not prohibit

every condition on a privilege that might “pressure” or

19

“induce” a person to give up what would otherwise be a

constitutional right, id. (citation omitted); rather, the

doctrine prohibits only those conditions that “coerc/e/

people into giving them up.” Koontz v. St. Johns River

Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013)

(emphasis added).

At times, some Members of the Court have seemed

to adopt the view that to violate this doctrine a

condition must be “actually coercive, in the sense of an

offer that cannot be refused.” Agency for Int’l Dev. v.

Alliance for Open Society Int'l, Inc., 133 S. Ct. 2321,

2328 (2013). There is no such actwal coercion here. See

supra at 12-14. But, in other instances, the Court has

held that a condition may impose “the type of coercion

that the unconstitutional conditions doctrine prohibits,”

Koontz, 133 S. Ct. at 2594, if there is not (1) “an

essential nexus” between a “legitimate state interest”

that the State seeks to advance and the condition it

requires, Dolan v. City of Tigard, 512 U.S. 374, 387

(1994) (citation omitted), and (2)a “rough

proportionality” between what the condition requires

of an individual and the “nature and extent” of the

potential costs of the privilege the individual seeks to

enjoy, id. at 391. Those criteria are met here too.

2. The laws at issue easily satisfy both the

“essential nexus” and “rough proportionality” factors.

a. There is no question that ensuring the safety of

the roads from the undeniable and incalculable harms

of drunk driving is a legitimate state interest. Indeed,

as this Court has repeatedly recognized, it is a

compelling one. See, e.g., McNeely, 133 S. Ct. at 1565;

Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451

(1990) (“No one can seriously dispute the magnitude of

the drunken driving problem or the State’s interest in

20

eradicating it.”); Mackey, 443 U.S. at 17 (recognizing

the “paramount interest the Commonwealth has in

preserving the safety of its public highways ... [by]

removing drunken drivers”).

Requiring consent to a blood-alcohol test and a

promise not to withdraw that consent where an officer

has probable cause to suspect drunk driving is directly

related to advancing that compelling interest. Indeed,

as is evident from their name, blood-alcohol tests are

specifically tailored to find evidence of drunk driving—

without revealing additional details about the

individual. Breath tests are preferred under the

Minnesota law, see Minn. Stat. § 169A.51(3),5 and they

are incapable of ascertaining anything other than the

presence of alcohol or other controlled substances in

the bloodstream. See Skinner v. Railway Labor

Executives’ Ass’n, 489 U.S. 602, 626-27 (1989). And,

while a blood or urine sample could theoretically be

used to discover additional details about a person, the

only purpose for which consent is required is to

“determinfe] the presence of alcohol” or other

controlled substance. Minn. Stat. § 169A.51(1); N.D.

Cent. Code § 39-20-01(1); see Florida v. Jimeno, 500

U.S. 248, 251 (1991) (a consent search is limited to what

the “typical reasonable person” would understand as

the scope of the consent).

The fact that a State may be able to force blood-

alcohol tests by obtaining a warrant or demonstrating

an exigency based on the particular facts at hand does

5 No action may be taken against a person under the

Minnesota law who refuses to take a blood or urine test, unless an

alternative test was also offered. Minn. Stat. § 169A.51(3). No

alternative to the breath test must be offered. In Bernard, the

officer requested a breath test only. See Bernard Pet. App. 4a-5a.

21

not mean that it lacks a legitimate interest in securing

prior consent. The existence of implied consent

advances the State’s interest in ensuring that it can

test the blood alcohol levels of drivers whom officers

have probable cause to believe are intoxicated, without

having to worry about the time needed to obtain a

warrant at 2 a.m. or any number of other factors.

The Court has never held that a consent search is

impermissible whenever a warrant might otherwise be

obtained. To the contrary, the Court has recognized “a

search pursuant to consent may result in considerably

less inconvenience for the subject of the search, and,

properly conducted, is a constitutionally permissible

and wholly legitimate aspect of effective police

activity.” Schneckloth, 412 U.S. at 228. “In a society

based on law, the concept of agreement and consent

should be given a weight and dignity of its own.”

United States v. Drayton, 536 U.S. 194, 207 (2002).

b. The required condition—consenting to a blood-

alcohol test to detect drunk driving and promising not

to withdraw that consent where an officer has probable

cause of drunk driving—is also, at the least, roughly

proportional to the harm it is designed to prevent.

Typically, the laws require no more than several

breaths into a tube. And even the most invasive test at

issue in these cases—a blood test—is a routine

procedure that is “safe, painless, and commonplace.”

Neville, 459 U.S. at 563; see also Schmerber, 384 U.S. at

771 (“{Flor most people the procedure involves

virtually no risk, trauma, or pain.”). The burden the

States are imposing is minimal.

The costs of drunk driving, by contrast, are

staggering. On average, drunk driving claims a life

every 52 minutes in the United States. See National

22

Highway Traffic Safety Administration, US.

Department of Transportation, DOT HS 812 102,

Traffic Safety Facts: Alcohol-Impaired Driving 1

(2014), http://www-nrd.nhtsa.dot.gov/Pubs/812102.pdf.

Depending on the method of calculation, the economic

cost of that human tragedy ranges from approximately

$50 billion a year to more than $200 billion. Jd. at 2; see

also McNeely, 133 S. Ct. at 1565 (“(Djrunk driving

continues to exact a terrible toll on our society.”); Sitz,

496 U.S. at 451 (“Media reports of alcohol-related death

and mutilation on the Nation’s roads are legion.”);

Neville, 459 U.S. at 558 (“The carnage caused by drunk

drivers is well documented .. . .”).

Petitioners argue that there is no proportionality

between “the right to drive” and “criminal fines and

imprisonment for test refusal.” Birchfield Br. 38. But

that is the wrong comparison. The laws explicitly

condition the right to drive based on consent “to a

chemical test of that person’s blood, breath, or urine for

the purposes of determining the presence of alcohol [or

other] controlled substance.” Minn. Stat.

§ 169A.51(1)(a); accord N.D. Cent. Code § 39-20-01(1).

Criminal penalties are merely the means of enforcing

that condition; no one has to agree to go to prison in

exchange for receiving a driver’s license, a choice that

anyone would reject. See Minn. Stat. § 169A.20(2);

N.D. Cent. Code § 39-08-01(1)(e).

As explained next, that means of enforcement poses

no additional Fourth Amendment concerns. See infra

Part II. But the salient point for purposes of the

“unconstitutional conditions” doctrine is that criminal

enforcement mechanisms are just that—a means of

enforcing the condition. They are not the condition

itself. Accordingly, they have no more bearing on the

23

constitutionality of that condition than a city’s means of

enforcing trespass on a dedication required as a

‘condition of a building permit. Cf. Dolan, 512 US. at

394-95. Which is to say: the particular means that

States have chosen to enforce the condition does not

bear on the “unconstitutional conditions” analysis at all.

3. In sum, the States’ requirement that, as a

condition of driving on the public roads, residents

consent to a blood-alcohol test when an officer has

probable cause to believe they were driving under the

influence falls well within the bounds of this Court’s

prior cases. This should come as no surprise. Although

the Court has yet to engage in this precise analysis,

every indication from the Court’s precedents points to

these laws’ constitutionality. When it has encountered

implied consent laws in the past, the Court has praised

them for “provid{ing] strong inducement to take the

breath-analysis test and thus effectuate[) the

Commonwealth’s interest in obtaining reliable and

relevant evidence for use in subsequent criminal

proceedings.” Mackey, 443 U.S. at 18. It has indicated

that punishing “refus[al] to take a blood-alcohol test is

unquestionably legitimate.” Neville, 459 U.S. at 560.

And, as noted, just three Terms ago, a plurality

endorsed these laws—and the “significant

consequences” “{s]uch laws impose . .. when a motorist

withdraws consent”—as a valuable means of

“enforcling] ... drunk-driving laws and ... securling

blood-alcohol] evidence without undertaking

warrantless nonconsensual blood draws.” McNeely,

133 S. Ct. at 1566.

Those decisions may not compel the same outcome

here. But it would be a surprising development, to say

24

the least, if the Court were to hold that, lo and behold,

these important laws were unconstitutional all along.

II. SUBJECTING PETITIONERS TO CRIMINAL

PENALTIES FOR VIOLATING THE

IMPLIED CONSENT LAWS DOES NOT

VIOLATE THE FOURTH AMENDMENT

Petitioners seek to distinguish this Court’s past

approval of implied consent laws on the ground that in

the earlier cases, the contemplated penalties for

refusing to submit to the consented-to test were

revocation of a driver’s license or use of the refusal as

evidence at trial, whereas the penalties here are

criminal—essentially the same punishment available

for the offense (drunk driving) petitioners sought to

evade. See Birchfield Br. 40. Even if a State can

constitutionally require advance consent to a blood-

alcohol test as a condition of driving on the State’s

roads, petitioners contend, the State cannot impose

criminal penalties for drivers who accept the benefit

(permission to drive on the roads) and then later

renege on the condition (consent) when it becomes

inconvenient. That argument should be rejected.

Petitioners cite nothing in arguing that the

Constitution distinguishes in this context between

evidentiary and administrative penalties, on the one

hand, and criminal penalties, on the other. They simply

claim that “it should be obvious.” /d. Amici are aware

of no cases in which this Court has held that a

permissible constitutional condition becomes

impermissible based solely on the particular

enforcement mechanism a State attaches to it. Nor

would such a holding make sense: If a State may

constitutionally require its citizens to do X (here,

submit to a blood-alcohol test as a condition of utilizing

25

public roads), nothing in the Constitution says that the

State can only enforce that requirement through civil

‘and administrative mechanisms, bu. not criminal ones.

The Eighth Amendment sets the outer bounds of

permissible penalties, but within that broad range the

Constitution allows States to experiment with the

optimal means of enforcement to protect their citizens,

as the States have done in prescribing a range of

penalties under the implied consent laws. U.S. Const.

amend. XVIII.

Moreover, in reneging on their consent, petitioners

sought to evade prosecution for the criminal offense of

drunk driving by depriving the State of a blood

analysis that would confirm that their blood-alcohol

level exceeded the legal limit—which automatically

triggers a conviction for drunk driving. See N.D. Cent.

Code § 39-08-01(1)(a); Minn. Stat. § 169A.20(5). The

laws at issue simply set the punishment for reneging on

a driver’s consent at the same level as the punishment

for the offense from which they are seeking to evade

prosecution by refusing to take a blood-alcohol test.

See N.D. Cent. Code § 39-08-01(1)(a), (e), (2), (5)

(punishing test-refusal as equivalent to driving with a

blood-alcohol level of at least .08); Minn. Stat.

§§ 169A.03, 169A.20(2), 169A.26 (punishing test refusal

as equivalent to driving with a blood-alcohol level of

.16).6 No State of which we are aware sets the

6 The punishment for such crimes in both States is

graduated based on the number of previous convictions. See Minn.

Stat. §§ 169A.275-76; N.D. Cent. Code § 39-08-01(5). The

minimum punishment for a first offense under North Dakota law

is a $500 fine and “an order for addiction evaluation by an

appropriate licensed addiction treatment program.” N.D. Cent.

Code § 39-08-01(5)(a)(1).

26

punishment at a greater level than the punishment for

some form of drunk driving itself.

A hypothetical illustrates the flaws with

petitioners’ position: Citizen A and Citizen B both

apply for driver’s licenses. Neither is willing to submit

to a Breathalyzer if he is pulled over by an officer who

has probable cause to believe that he is driving drunk.

Citizen A is forthright about this, and the State

therefore denies him a driver’s license. Citizen B, by

contrast, stays mum and receives a license. Citizen A

and Citizen B meet at a bar and have several cocktails.

Both make the wrongheaded decision to drive home

instead of taking Uber. Both are pulled over. Both—

knowing that they are certain to fail—refuse to take

Breathalyzers. Both evade a conviction for driving

under the influence because the police were unable to

secure the key evidence needed for conviction.

No one would dispute that Citizen A could be

criminally punished for a criminal offense of driving

without a license. But under petitioners’ view, Citizen

B cannot be criminally punished for refusing to take a

Breathalyzer test. Instead, the State would be limited

to suspending Citizen B’s license. That puts Citizen B

in a better position than Citizen A, because Citizen B is

in the same position after his decision to drive drunk

(7.e., he no longer has a license) that Citizen A was in

before he decided to drive (i.e., without a license). In

effect, petitioners’ rule creates an incentive for

residents to accept a government benefit when they

have no intention of complying with the State’s

constitutionally permitted reciprocal condition,

knowing that if they are caught the worst that will

happen to them is that they will lose a privilege they

should not have received in the first place.

27

Petitioners’ rule also could have _ collateral

consequences. Federal, state, and local governments

routinely (and legitimately) provide citizens with

benefits in exchange for their agreement not to

exercise certain constitutional rights, and may enforce

those choices with criminal penalties. For example,

this Court has endorsed the use of non-disclosure

requirements to protect the confidentiality of judicial

misconduct proceedings. See Landmark Commce’ns,

Inc. v. Virginia, 435 U.S. 829, 845 (1978). A private

citizen who learns the details of those proceedings may

have a First Amendment right to publish them, see id.

at 838, but a citizen who agrees to work for a Judicial

Misconduct Commission can be required as a condition

of employment to agree not to exercise that First

Amendment right. And if the employee subsequently

goes back on that agreement and engages in speech

that would be protected if voiced by a private citizen,

the State can prosecute the violation as contempt. See

id. at 841 n.12.

Under petitioners’ view, however, the State could

do nothing more than terminate the employment of an

employee who revealed confidential information by

“exercising First Amendment rights”—or, in other

words, just take away the benefit that the employee

accepted in exchange for foregoing a limited exercise of

First Amendment rights in the first place.’

7 For the reasons offered in the text, a State may impose

criminal penalties on drivers who renege on their promise to

submit to a blood alcohol test. It follows that a driver's

submission to a test (like petitioner Beylund’s) is not rendered

involuntary merely because officers notify him at the time of the

test that—as he was presumed to know already—refusing to

submit will result in criminal penalties. See Neville, 459 U.S. at

28

Ill. THE IMPLIED CONSENT LAWS PASS

THE ULTIMATE FOURTH AMENDMENT

TOUCHSTONE OF REASONABLENESS

“(T]he overriding function of the Fourth

Amendment is to protect personal privacy and dignity

against unwarranted intrusion by the State.” Winston

v. Lee, 470 U.S. 753, 760 (1985) (quoting Schmerber, 384

U.S. at 767). The Fourth Amendment therefore

requires a balancing between the “interests in human

dignity and privacy,” Schmerber, 384 U.S. at 769-70,

and “the community’s need for evidence,” Winston, 470

U.S. at 760. Even in cases where this Court has held

that the latter outweighs the former, it has recognized

the significant costs to “personal and deep-rooted

expectations of privacy” that such searches entail. /d.

at 760. As the Court explained in McNeely, “any

compelled intrusion into the human body implicates

significant, constitutionally protected privacy

interests.” 133 S. Ct. at 1565. That intrusion may be

legitimized by a warrant, but it is not lessened by one.

Implied consent laws were enacted as a means of

respecting these privacy and dignitary interests. In

Schmerber, this Court held that States may take

forced, nonconsensual blood draws in_ certain

circumstances where there is probable cause to suspect

drunk driving. 384 U.S. at 770-72. But “faced with the

prospect ... that recalcitrant offenders would have to

be restrained while blood was drawn,” States enacted

implied consent laws as a way “to avoid forced blood

draws.” Robert B. Voas et al., /mplied-Consent Laws:

563 (“(Tyhe offer of taking a blood-alcohol test §_ becomes no less

legitimate when the State offers a second option of refusing the

test, with the attendant penalties for making that choice.”).

29

A Review of the Literature and Examination of

Current Problems and Related Statutes, 40 J. Safety

Research 77, 78 (2009). All States, and the federal

government, have had implied consent laws for

decades, and this Court has repeatedly referred to such

laws in approving terms—not once suggesting that

they raised lurking Fourth Amendment concerns.

Initially, States viewed license suspensions as a

sufficient response (and deterrent) to address drunk

driving, and set the penalties under implied consent

laws to match. Jd. But over time, States have

recognized the need to fight drunk driving more

aggressively. Gone are the days of a slap on the wrist.

Today many States have imposed jail time and

substantial fines for those convicted of driving under

the influence, and adopted enhanced penalties for

offenders with especially high blood-alcohol content.

And as they have done so, a growing number of States

have adjusted the penalties for test refusal so that they

track the punishment for the underlying offense.

If the Court holds that these criminal penalties

somehow violate the Fourth Amendment, the result

will be not only to create an incentive for motorists to

renege on their consent, but ultimately to encourage

more “compelled intrusion[s] into the human body” in

search of evidence, not fewer. McNeely, 133 S. Ct. at

1565. Suspects will view the prospect of civil penalties

for reneging on their consent as the better option than

the criminal penalties that accompany a drunk driving

conviction. And law enforcement, in turn, will need to

force blood draws to ensure that drunk driving can be

criminally prosecuted. That is not a result that the

framers of the Fourth Amendment would relish.

30

The implied consent laws further safeguard Fourth

Amendment interests by providing that officers must

have probable cause to believe that a suspect was

driving under the influence in order for the test refusal

penalties apply. Thus, while the laws do not require

officers to secure a warrant on the spot—because they

are not forcing a nonconsenting suspect to submit to a

search—the laws only apply to circumstances where a

motorist has been stopped because the officers had

probable cause to believe there was drunk driving.

These considerations only bolster the conclusion

that the implied consent laws meet the Fourth

Amendment’s ultimate touchstone of reasonableness.

CONCLUSION

The judgments below should be affirmed.

Respectfully submitted,

LISA SORONEN GREGORY G. GARRE

State & Local Legal Center Counsel of Record

444 N. Capitol St., NW JONATHAN Y. ELLIS

Suite 515 BENJAMIN W. SNYDER

Washington, DC 20001 LATHAM & WATKINS LLP

(202) 434-4845 555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

Gregory.Garre@]w.com

Attorneys for Amici Curiae

March 22, 2016