State v. Modlin ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. MODLIN
Cite as 291 Neb. 660
State of Nebraska, appellee, v.
Nathan A. Modlin, appellant.
___ N.W.2d ___
Filed August 21, 2015. No. S-14-590.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. Regarding
historical facts, an appellate court reviews the trial court’s findings for
clear error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Constitutional Law: Search and Seizure: Appeal and Error. When
reviewing whether a consent to search was voluntary, as to the historical
facts or circumstances leading up to a consent to search, an appellate
court reviews the trial court’s findings for clear error. However, whether
those facts or circumstances constituted a voluntary consent to search,
satisfying the Fourth Amendment, is a question of law, which an appel-
late court reviews independently of the trial court. And where the facts
are largely undisputed, the ultimate question is an issue of law.
3. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
4. Constitutional Law: Search and Seizure: Blood, Breath, and Urine
Tests. The drawing of blood from a person’s body for the purpose of
administering blood tests is a search of the person subject to Fourth
Amendment constraints.
5. Constitutional Law: Search and Seizure. Searches conducted outside
the judicial process, without prior approval by a judge or magistrate,
are per se unreasonable under the Fourth Amendment to the U.S.
Constitution, subject only to a few specifically established and well-
delineated exceptions.
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6. Warrantless Searches. The warrantless search exceptions recognized by
the Nebraska Supreme Court include: (1) searches undertaken with con-
sent, (2) searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
7. Constitutional Law: Search and Seizure: Duress. To be effective
under the Fourth Amendment, consent to a search must be a free and
unconstrained choice, and not the product of a will overborne. Consent
must be given voluntarily and not as the result of duress or coercion,
whether express, implied, physical, or psychological.
8. Search and Seizure. Whether consent to a search was voluntary is to be
determined from the totality of the circumstances surrounding the giving
of consent.
9. Constitutional Law: Blood, Breath, and Urine Tests. A court may not
rely solely on the existence of an implied consent statute to conclude
that consent to a blood test was given for Fourth Amendment purposes,
and the determination of whether consent was voluntarily given requires
a court to consider the totality of the circumstances.
10. Blood, Breath, and Urine Tests. In considering the totality of the cir-
cumstances, the existence of an implied consent statute is one circum-
stance a court may and should consider to determine voluntariness of
consent to a blood test.
11. Search and Seizure. Once given, consent to search may be withdrawn.
Withdrawal of consent need not be effectuated through particular “magic
words,” but an intent to withdraw consent must be made by unequivocal
act or statement.
12. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. The standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of objective reasonableness—what
would the typical reasonable person have understood by the exchange
between the officer and the suspect?
Petition for further review from the Court of Appeals, Irwin,
Bishop, and R iedmann, Judges, on appeal thereto from the
District Court for Hall County, Teresa K. Luther, Judge, on
appeal thereto from the County Court for Hall County, A rthur
S. Wetzel, Judge. Judgment of Court of Appeals affirmed.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
P.C., for appellant.
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STATE v. MODLIN
Cite as 291 Neb. 660
Douglas J. Peterson and Jon Bruning, Attorneys General,
and Nathan A. Liss for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Nathan A. Modlin was convicted in the Hall County Court
for driving under the influence (DUI), first offense, in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2010). Modlin
claims that the county court erred when it overruled his
motion to suppress evidence of the result of a blood test and
that the district court and the Nebraska Court of Appeals erred
when they affirmed the county court’s ruling. We granted
Modlin’s petition for further review.
Modlin argues that the evidence should have been sup-
pressed because the warrantless drawing of his blood did not
satisfy any exception to the Fourth Amendment requirement of
a search warrant. We conclude that a blood draw of an arrestee
in a DUI case is a search subject to Fourth Amendment princi-
ples and that when the State claims the blood draw was proper
pursuant to the consent exception to the warrant requirement,
actual voluntary consent is to be determined by reference to
the totality of the circumstances, one of which is the implied
consent statute. Because the facts show that Modlin voluntarily
consented to the blood test, the overruling of his motion to
suppress was not error. We affirm.
STATEMENT OF FACTS
On June 15, 2013, Deputy Casey Dahlke initiated a traf-
fic stop after he observed a vehicle cross the centerline of a
two-lane highway three times. Dahlke observed that Modlin,
who was the driver and sole occupant of the vehicle, had an
odor of alcohol about him and glassy, bloodshot eyes. Modlin
admitted to drinking two beers, and he exhibited signs of
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STATE v. MODLIN
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impairment on all three field sobriety tests conducted by
Dahlke. Modlin submitted to a preliminary breath test which
showed a result of more than .08 grams of alcohol per 210
liters of breath.
Dahlke placed Modlin under arrest and transported him to a
hospital for a blood test. Dahlke gave Modlin the “Post Arrest
Chemical Test Advisement” form to read. The form stated
that Modlin was under arrest for DUI and that the officer was
“requiring [Modlin] to submit to a chemical test or tests of
[his] blood, breath, or urine to determine the concentration of
alcohol or drugs in [his] blood, breath, or urine.” The form
also stated, “Refusal to submit to such test or tests is a sepa-
rate crime for which you may be charged.” The form further
stated that the officer had the authority to direct whether the
tests should be of blood, breath, or urine. Under the heading,
“Request for test,” Dahlke selected a test of Modlin’s blood to
determine the alcohol content. Dahlke asked Modlin if he was
capable of reading and understanding the form, and Modlin
replied “yes.” Modlin read the form, signed it, and indicated
that he had no questions. Modlin’s blood was then drawn, and
the result of the blood test was .217 grams of alcohol per 100
milliliters of blood.
The State charged Modlin in county court with one count
of DUI, first offense, aggravated, and one count of crossing
over the centerline. Prior to trial, Modlin filed a motion to
suppress and two supplemental motions to suppress. In the
original motion, Modlin moved to suppress (1) all evidence
obtained as a result of the stop, because the initial stop was
not based upon probable cause; (2) statements made while
in custody, before Miranda warnings were given; and (3) the
result of the blood test which he asserted was taken without
probable cause. In the first supplemental motion, he sought
to suppress the result of the preliminary breath test, which he
asserted was taken in violation of the Fourth Amendment, and
in the second supplemental motion, Modlin sought to suppress
the result of the blood test for the additional reason that it was
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a warrantless search in violation of the Fourth Amendment.
On further review, Modlin has abandoned all the bases for his
motions to suppress except the Fourth Amendment challenge
to the blood test.
A hearing was held on Modlin’s motions to suppress, and
both Modlin and Dahlke testified at the hearing. Dahlke testi-
fied that he gave Modlin the chemical test advisement form,
which Modlin read to himself. Dahlke testified that Modlin
signed the form and stated he understood it and that after
Dahlke asked whether he had any question about the form,
Modlin said “no.”
Modlin testified that when he signed the chemical test
advisement form, he was “just trying to comply with what
[Dahlke] was asking [him]” but that he “never consented to
the blood draw.” Modlin testified that when he read the form,
he did not believe there was any way that he could not submit
to the test. On cross-examination, Modlin admitted that he had
told Dahlke that he understood the form and that he signed
the form. He further admitted that he did not at any time tell
either Dahlke or the phlebotomist that he did not want his
blood drawn and that he did not try to prevent the phleboto-
mist from drawing his blood.
The county court overruled the motions to suppress. The
court concluded that the initial stop was proper. With regard
to the result of the blood test, the court determined that
by choosing to operate a motor vehicle on Nebraska high-
ways, under Nebraska’s implied consent law, Modlin had
given his consent to submit to a chemical test. The court
further found that Modlin read the chemical test advisement
form and that Modlin did not withdraw his consent. The court
stated: “[Modlin] was given the option of consenting to a test
or suffering the consequences if he withdrew his consent.
[Modlin] voluntarily agreed to the test and there was no Fourth
Amendment violation.”
After the county court overruled Modlin’s motions to sup-
press, the parties agreed to a stipulated bench trial. At the
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trial, the State dismissed the charge of crossing over the cen-
terline and reduced the DUI charge to nonaggravated DUI,
first offense. The parties stipulated that the county court
could consider all the evidence received at the hearing on the
motions to suppress, subject to Modlin’s objections and issues
raised by the motions to suppress, and that Modlin preserved
the objections and issues raised in his motions to suppress.
The parties further stipulated that there was probable cause
to arrest Modlin for DUI, that Modlin’s blood was drawn and
tested in compliance with applicable statutes and regulations,
and that the alcohol content of Modlin’s “blood was in excess
of .08 [sic] grams of alcohol per 100 milliliters” of blood. The
county court found Modlin guilty of DUI, first offense. The
court sentenced Modlin to 6 months’ probation, revoked his
driver’s license for 60 days, ordered him to pay a fine of $500
and the costs of prosecution, and ordered him to apply for an
ignition interlock permit.
Modlin appealed his conviction to the district court. In his
statement of errors, he alleged that the county court erred when
it overruled his motion to suppress and second supplemental
motion to suppress and when it concluded that the warrantless
seizure of his blood did not violate the Fourth Amendment.
Following a hearing, the district court affirmed the conviction.
In its order, the district court determined that “Modlin gave
informed consent [to the blood draw] thus negating the argu-
ment that a search warrant was necessary.” The district court
concluded that the county court properly overruled Modlin’s
motions to suppress.
Modlin appealed to the Court of Appeals and claimed that
the county court erred when it overruled his motion to suppress
evidence of the result of the blood draw and that the district
court erred when it affirmed the county court’s ruling. In an
unpublished memorandum opinion filed on February 2, 2015,
the Court of Appeals rejected Modlin’s argument and affirmed
his conviction.
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STATE v. MODLIN
Cite as 291 Neb. 660
The Court of Appeals reviewed Nebraska’s implied consent
law, Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2014), which pro-
vides in subsection (1):
Any person who operates or has in his or her actual
physical control a motor vehicle in this state shall be
deemed to have given his or her consent to submit to
a chemical test or tests of his or her blood, breath, or
urine for the purpose of determining the concentration of
alcohol or the presence of drugs in such blood, breath,
or urine.
The statute further provides that peace officers may direct any
person arrested for suspicion of driving under the influence of
alcohol to submit to a chemical test of his or her blood, breath,
or urine and that a person who refuses to submit to a test shall
be subject to administrative license revocation procedures and
shall be guilty of a crime. § 60-6,197(2) and (3). Under the
statute, the person “shall be advised that refusal to submit to
such test or tests is a separate crime for which the person may
be charged.” § 60-6,197(5). The Court of Appeals observed
that this court has upheld the constitutionality of the implied
consent law. See State v. Williams, 189 Neb. 127, 201 N.W.2d
241 (1972) (rejecting Fifth Amendment challenge to blood
test evidence).
The Court of Appeals concluded that by driving his vehi-
cle in Nebraska, Modlin consented to submit to chemical
tests of his blood, breath, or urine pursuant to the implied
consent statute. The Court of Appeals noted that consent
was an exception to the warrant requirement of the Fourth
Amendment. The Court of Appeals, however, acknowledged
the difficult choice Modlin faced when he was advised that
refusal to submit to the test was a separate crime for which he
could be charged.
Modlin and the State directed the Court of Appeals to a
recent U.S. Supreme Court case, Missouri v. McNeely, ___
U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). The
Court of Appeals addressed but rejected Modlin’s contention
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that under McNeely, Dahlke should have obtained a warrant
in order to direct the blood test. In McNeely, the Court con-
cluded that the natural metabolization of alcohol in the blood-
stream, standing alone, did not present an exigent circum-
stance that justified an exception to the Fourth Amendment’s
warrant requirement for nonconsensual blood testing in all
drunk driving cases.
The Court of Appeals distinguished Modlin’s situation from
that of the defendant in McNeely. The Court of Appeals noted
that whatever his internal feelings might have been, Modlin
had not in any way expressed a withdrawal of his consent,
whereas the defendant in McNeely had revoked his implied
consent under Missouri’s implied consent law. Therefore, the
Court of Appeals concluded that Dahlke did not need a war-
rant before directing the blood draw, because Modlin had con-
sented to it under Nebraska’s implied consent law and had not
manifested withdrawal of that consent. The Court of Appeals
concluded that the county court had properly admitted evi-
dence of Modlin’s blood alcohol content over Modlin’s motion
to suppress and objections and that the district court had
properly affirmed the ruling. The Court of Appeals affirmed
his conviction.
We granted Modlin’s petition for further review.
ASSIGNMENT OF ERROR
Modlin claims, consolidated and restated, that the Court of
Appeals erred when it determined that the warrantless draw-
ing of his blood for alcohol testing was not a violation of his
rights under the Fourth Amendment.
STANDARDS OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, we apply a two-part standard of review. State
v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). Regarding
historical facts, we review the trial court’s findings for clear
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error. Id. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination. Id.
[2] Likewise, we apply the same two-part analysis when
reviewing whether a consent to search was voluntary. As to
the historical facts or circumstances leading up to a consent
to search, we review the trial court’s findings for clear error.
However, whether those facts or circumstances constituted a
voluntary consent to search, satisfying the Fourth Amendment,
is a question of law, which we review independently of the
trial court. And where the facts are largely undisputed, the ulti-
mate question is an issue of law. See State v. Hedgcock, 277
Neb. 805, 765 N.W.2d 469 (2009).
ANALYSIS
Modlin claims that the county court erred when it overruled
his motion to suppress evidence of the result of his blood test
and that the district court and Court of Appeals erred when
they affirmed the county court’s ruling. Modlin argues that the
evidence should have been suppressed because the blood draw
was a search for Fourth Amendment purposes, the search was
conducted without a warrant, and no exception to the warrant
requirement applied because implied consent does not con-
stitute “consent” for Fourth Amendment purposes. The State
maintains that, given the implied consent statute, Modlin gave
his implied consent to the blood draw when he drove on a
public roadway and did not withdraw that consent. We agree
with both parties that the blood draw was a warrantless search
for Fourth Amendment purposes, and we determine that after
considering the totality of the circumstances, the county court
did not err when it found that Modlin actually consented to
the search.
[3,4] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures. State v. Rodriguez, 288
Neb. 878, 852 N.W.2d 705 (2014). It has long been recognized
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that the drawing of blood from a person’s body for the pur-
pose of administering blood tests is a search of the person
subject to Fourth Amendment constraints. See, Missouri v.
McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696
(2013); Skinner v. Railway Labor Executives’ Assn., 489 U.S.
602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); Winston v.
Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985);
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.
Ed. 2d 908 (1966).
[5,6] Searches conducted outside the judicial process,
without prior approval by a judge or magistrate, are per
se unreasonable under the Fourth Amendment to the U.S.
Constitution, subject only to a few specifically established and
well-­delineated exceptions. State v. Wells, 290 Neb. 186, 859
N.W.2d 316 (2015). The warrantless search exceptions recog-
nized by the Nebraska Supreme Court include: (1) searches
undertaken with consent, (2) searches under exigent circum-
stances, (3) inventory searches, (4) searches of evidence in
plain view, and (5) searches incident to a valid arrest. Id. In the
present case, the exception relating to exigent circumstances
is discussed briefly in connection with our consideration of
McNeely, but we focus on consent.
The parties ask us to consider whether and to what extent
the U.S. Supreme Court’s decision in Missouri v. McNeely,
supra, controls the issues in this case. In McNeely, a motor-
ist was stopped after speeding and crossing the centerline.
The motorist refused to consent to a blood draw for the
purposes of measuring his blood alcohol content. Officers
had the test performed without the motorist’s consent and
without first obtaining a warrant. As the Court of Appeals cor-
rectly observed, the U.S. Supreme Court framed the issue as
“whether the natural metabolization of alcohol in the blood-
stream presents a per se exigency that justifies an exception
to the Fourth Amendment’s warrant requirement for noncon-
sensual blood testing in all drunk-driving cases.” McNeely v.
Missouri, 133 S. Ct. at 1556 (emphasis supplied). The Court
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answered this question in the negative and concluded that exi-
gency in this context must be determined case by case based
on the totality of the circumstances.
Because it had been found as a factual matter that the motor-
ist in McNeely did not consent to the blood draw, the U.S.
Supreme Court’s decision in McNeely focused solely on the
exigency exception to the warrant requirement. Although a
plurality of the Court acknowledged that implied consent stat-
utes are among the “broad range of legal tools [States have] to
enforce their drunk-driving laws and to secure [blood alcohol
content] evidence without undertaking warrantless nonconsen-
sual blood draws,” 133 S. Ct. at 1566, the Court in McNeely
did not directly decide the separate question whether the con-
sent exception to the Fourth Amendment warrant requirement
was satisfied solely by the operation of Missouri’s implied
consent statute.
In Missouri v. McNeely, supra, the U.S. Supreme Court ren-
dered holdings with regard to the exigency exception. But in
the instant case, neither the State nor the county court relied
on exigency to justify the warrantless search; instead, they
relied on the consent exception. Therefore, we need not decide
in this case whether the exigency exception applies, and the
holdings in McNeely relative to exigency are not explicitly
relevant to the disposition of this case. As noted, a plurality of
the Court in McNeely made reference to implied consent laws;
however, the Court rendered no holdings with regard to the
consent exception, because the facts showed that the defendant
did not consent to the blood draw and, therefore, McNeely is
not directly applicable to whether the blood draw performed
on Modlin was justified under the consent exception to the
warrant requirement of the Fourth Amendment.
Other courts have analyzed Missouri v. McNeely, ___
U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), and
agree with our reading that McNeely does not explicitly pro-
vide guidance regarding the consent exception to the Fourth
Amendment warrant requirement. See, e.g., People v. Harris,
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234 Cal. App. 4th 671, 184 Cal. Rptr. 3d 198 (2015) (con-
cluding that McNeely does not govern where defendant freely
and voluntarily consented to blood test and that such consent
satisfies Fourth Amendment); State v. Brooks, 838 N.W.2d
563 (Minn. 2013) (rejecting broad view of McNeely and find-
ing that although McNeely eliminated single-factor exigency
exception to warrant requirement, warrantless extraction of
blood, breath, and urine was still permissible under Fourth
Amendment when defendant freely and voluntarily consented
to testing); State v. Fetch, 855 N.W.2d 389 (N.D. 2014) (not-
ing McNeely held that natural dissipation of alcohol in blood-
stream is not per se exigent circumstance justifying exception
to warrant requirement for nonconsensual blood testing in
all drunk-driving investigations, but recognizing consent is
separate exception to warrant requirement). In view of the
limitations of McNeely, we agree with the Supreme Court
of Georgia which stated: “[T]he analysis in this case must
then focus on the voluntary consent exception to the warrant
requirement because it is well settled in the context of a DUI
blood draw that a valid consent to a search eliminates the need
for . . . a search warrant.” Williams v. State, 296 Ga. 817, 821,
771 S.E.2d 373, 376 (2015).
[7,8] We turn now to consideration of whether the consent
exception justified the blood draw. We have stated the fol-
lowing with respect to the consent exception: To be effective
under the Fourth Amendment, consent to a search must be a
free and unconstrained choice, and not the product of a will
overborne. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853
(2001). Consent must be given voluntarily and not as the result
of duress or coercion, whether express, implied, physical, or
psychological. Id. The determination of whether the facts and
circumstances constitute a voluntary consent, satisfying the
Fourth Amendment, is a question of law. State v. Hedgcock,
277 Neb. 805, 765 N.W.2d 469 (2009). Whether consent was
voluntary is to be determined from the totality of the circum-
stances surrounding the giving of consent. See State v. Tucker,
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supra. See, also, State v. Gorup, 279 Neb. 841, 782 N.W.2d
16 (2010).
At this juncture, it is important to distinguish between
“implied consent” and “actual consent.” The Court of Appeals
of Wisconsin stated:
“Implied consent” is not an intuitive or plainly descrip-
tive term with respect to how the implied consent law
works. [It may be] a source of confusion. [T]he term
“implied consent” [may be] used inappropriately to refer
to the consent a driver gives to a blood draw at the time
a law enforcement officer requires that driver to decide
whether to give consent. However, actual consent to a
blood draw is not “implied consent” . . . .
State v. Padley, 354 Wis. 2d 545, 564, 849 N.W.2d 867,
876 (Wis. App. 2014). In connection with actual consent, the
Padley court continued:
[T]he implied consent law is explicitly designed to allow
the driver, and not the police officer, to make the choice
as to whether the driver will give or decline to give actual
consent to a blood draw when put to the choice between
consent or automatic sanctions [for refusal].
345 Wis. 2d at 571, 849 N.W.2d at 879 (emphasis in origi-
nal). That is, ordinarily, the point at which the driver chooses
not to refuse is the point in time at which the driver actually
consents to a blood draw. And the Supreme Court of Georgia
in Williams v. State, supra, noted that the determination of
actual consent to the procuring and testing of a driver’s blood
requires the determination of the voluntariness of the consent
under the totality of the circumstances. Id. See, also, People v.
Harris, 234 Cal. App. 4th 671, 184 Cal. Rptr. 3d 198 (2015);
State v. Brooks, 838 N.W.2d 563 (Minn. 2013).
[9] The Supreme Court of Georgia observed that post-
McNeely, “the cases seem to indicate . . . that mere compli-
ance with statutory implied consent requirements does not,
per se, equate to actual, and therefore voluntary, consent
on the part of the suspect so as to be an exception to the
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constitutional mandate of a warrant.” Williams v. State, 296
Ga. at 822, 771 S.E.2d at 377. Our reading of the cases is in
accord. For example, in Flonnory v. State, 109 A.3d 1060,
1065 (Del. 2015), the Supreme Court of Delaware concluded
that “the trial court erred when it concluded that ‘Defendant’s
statutory implied consent exempted the blood draw from
the warrant requirement’ of the Fourth Amendment.” The
court in Flonnory remanded the cause for the trial court to
“conduct a proper Fourth Amendment analysis” which would
entail “considering the totality of the circumstances.” 109
A.3d at 1066. The court in Flonnory noted that in Missouri
v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d
696 (2013), the U.S. Supreme Court had acknowledged that
implied consent laws were a legal tool to enforce drunk driv-
ing laws but the Court had still explained that “‘[w]hether a
warrantless blood test of a drunk-driving suspect is reason-
able must be determined case by case based on the total-
ity of the circumstances.’” State v. Flonnory, 109 A.3d at
1066. See, also, Weems v. State, 434 S.W.3d 655 (Tex. App.
2014) (implied consent and mandatory blood draw statu-
tory scheme is not, per se, exception to Fourth Amendment
warrant requirement); Aviles v. State, 443 S.W.3d 291 (Tex.
App. 2014) (mandatory blood draw authorized by statute was
not categorical per se exception to warrant requirement and
consideration of totality of circumstances was required under
Fourth Amendment). We agree with the rationale of the fore-
going authorities. Accordingly, we conclude that a court may
not rely solely on the existence of an implied consent statute
to conclude that consent to a blood test was given for Fourth
Amendment purposes and that the determination of whether
consent was voluntarily given requires a court to consider the
totality of the circumstances.
[10] In considering the totality of the circumstances, we
believe that the existence of an implied consent statute is
one circumstance a court may and should consider to deter-
mine voluntariness of consent to a blood test. In the present
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case, the county court did not merely note that Modlin had
given his implied consent by operation of § 60-6,197(1), but
instead, the county court properly considered the totality of
the circumstances before it when it concluded that Modlin
had consented to the blood draw. The court held a hearing on
Modlin’s motions to suppress, at which hearing both Modlin
and the State presented evidence regarding, inter alia, the issue
of consent.
The State presented evidence that Modlin had operated a
motor vehicle in Nebraska, which established that Modlin had
given his implied consent as understood under § 60-6,197(1),
and that he affirmed that consent at the hospital. The evidence
showed that Modlin was given, read, and understood the
chemical test advisement form. The form itself indicates the
consequences if the driver exercises his or her refusal option.
The State presented evidence that Modlin did not do or say
anything to Dahlke or the phlebotomist to indicate that he
wished to refuse the test, and Modlin conceded as much. Given
this evidence, we conclude that the county court did not err in
its determination that under the totality of the circumstances,
Modlin actually consented to the test.
Notwithstanding the foregoing facts, Modlin makes a vari-
ety of arguments, all to the effect that he did not actually
consent voluntarily to the blood test. Primary among his argu-
ments is the claim that he was coerced because he was given
a difficult choice between consenting to the blood test or
refusing to give his consent, with its attendant consequences.
In this regard, Modlin acknowledges that he was made aware
that if he refused the test, he would be subject to the legal
consequences of administrative license revocation and crimi-
nal charges. Although such consequences render refusal a
difficult choice to make, courts in other jurisdictions have
generally determined that the difficulty of such choice does
not render consent involuntary. In People v. Harris, 234 Cal.
App. 4th 671, 689, 184 Cal. Rptr. 3d 198, 213 (2015), the
court stated: “That the motorist is forced to choose between
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submitting to the chemical test and facing serious conse-
quences for refusing to submit, pursuant to the implied con-
sent law, does not in itself render the motorist’s submission
to be coerced or otherwise invalid for purposes of the Fourth
Amendment.” See, similarly, State v. Brooks, 838 N.W.2d 563,
570-71 (Minn. 2013) (“a driver’s decision to agree to take a
test is not coerced simply because [the State] has attached the
penalty of making it a crime to refuse the test” and “while the
choice to submit or refuse to take a chemical test ‘will not be
an easy or pleasant one to make,’ the criminal process ‘often
requires suspects and defendants to make difficult choices’”);
State v. Fetch, 855 N.W.2d 389, 393 (N.D. 2014) (“consent to
a chemical test is not coerced and is not rendered involuntary
merely by a law enforcement officer’s reading of the implied
consent advisory that accurately informs the arrestee of the
consequences for refusal, including the criminal penalty, and
presents the arrestee with a choice”); State v. Moore, 354
Or. 493, 502-03, 318 P.3d 1133, 1138 (2013) (“advising a
defendant of the lawful consequences that may flow from his
or her decision to engage in a certain behavior ensures that
the defendant makes an informed choice whether to engage
in that behavior or not. . . . accurately advising a defendant
of a lawful penalty that could be imposed may well play a
role in the defendant’s decision to engage in the particular
behavior, but that does not mean that the defendant’s decision
was ‘involuntary’”).
[11,12] For completeness, we note that we have said mere
submission to authority is insufficient to establish consent
to a search. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853
(2001). However, we do not find mere submission in this case,
but instead observe that Modlin made decisions, the totality
of which show consent. Modlin made the choice to drive in
Nebraska, thereby giving his implied consent under the stat-
ute. We have stated that once given, consent to search may
be withdrawn. State v. Smith, 279 Neb. 918, 782 N.W.2d 913
(2010). Withdrawal of consent need not be effectuated through
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particular “magic words,” but an intent to withdraw consent
must be made by unequivocal act or statement. Id. The stan-
dard for measuring the scope of a suspect’s consent under the
Fourth Amendment is that of objective reasonableness—what
would the typical reasonable person have understood by the
exchange between the officer and the suspect? Id.
In this case, there was no evidence of an act or statement,
unequivocal or otherwise, made by Modlin to indicate a with-
drawal of his implied consent. Modlin acknowledges that he
was made aware of the choice to refuse the blood draw but
that he did and said nothing to objectively manifest or choose
refusal. Although Modlin may not have verbally indicated his
consent, consent to search may be implied by action rather than
words. See State v. Brooks, supra. In this case, Modlin’s con-
duct indicated his consent, because he allowed the phleboto-
mist to draw his blood without doing anything to manifest a
refusal to either Dahlke or the phlebotomist. The county court
did not err when it determined that Modlin had consented and
not merely submitted to authority.
Finally, we address the content and adequacy of the advise-
ment form as it relates to the totality of the circumstances.
We recognize that the chemical test advisement form did not
explicitly state that Modlin was being asked to choose between
the blood draw or refusal. The advisement form did, however,
set forth the consequences of refusing the test, which we
believe adequately notified Modlin that refusal was an option,
albeit one with unpleasant consequences. The form states,
“Refusal to submit to such test or tests is a separate crime for
which you may be charged.” We are aware that there exist
more robust forms. See, e.g., State v. Barnes, 331 Ga. App.
631, 633 n.2, 770 S.E.2d 890, 891 n.2 (2015) (noting that
Georgia statute provides for notice which describes submission
to chemical test and consequences of refusal and concludes:
“‘Will you submit to the state administered chemical tests of
your (designate which tests) under the implied consent law?’”).
We note that other state courts which have considered a form
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that notifies the driver of the consequences of refusal have
characterized the form as presenting a “yes” or “no” option.
E.g., State v. Padley, 354 Wis. 2d 545, 849 N.W.2d 867 (Wis.
App. 2014). Because the chemical test advisement form in this
case indicated to Modlin the consequences of exercising the
option of refusal, the fact that he submitted after reading the
form was among the circumstances that supported a finding of
voluntary consent.
Having concluded that the county court did not err when it
concluded that Modlin consented to the blood draw, we further
conclude that the county court did not err when it concluded
that the warrantless blood draw was not in violation of the
Fourth Amendment and overruled Modlin’s motion to sup-
press evidence of the result of the blood test. We therefore
reject Modlin’s claim that the Court of Appeals erred when it
affirmed the district court’s decision which had affirmed the
county court’s overruling of the motion to suppress.
CONCLUSION
We conclude that a blood draw of an arrestee in a DUI
case is a search subject to Fourth Amendment principles and
that when the State claims the blood draw was proper pur-
suant to the consent exception to the warrant requirement,
actual voluntary consent is to be determined by reference to
the totality of the circumstances, one of which is the implied
consent statute.
We conclude that the county court properly considered the
totality of the circumstances and that it did not err when it
determined Modlin consented to the blood draw. As a result,
the county court did not err when it overruled Modlin’s motion
to suppress evidence of the result of the blood test and the
district court and the Court of Appeals did not err when they
affirmed that ruling. On further review, we affirm the decision
of the Court of Appeals.
A ffirmed.
Stephan, J., not participating.