State v. Micah Abraham Wulff

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 41179
STATE OF IDAHO, )
)
Boise, August 2014 Term
Plaintiff-Appellant, )
)
2014 Opinion No. 105
v. )
)
Filed: October 29, 2014
MICAH ABRAHAM WULFF, )
)
Stephen W. Kenyon, Clerk
Defendant-Respondent. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Benjamin R. Simpson, District Judge.
District court order granting motion to suppress, affirmed.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise for appellant.
Kenneth K. Jorgensen, Deputy Attorney General argued.
Phelps & Associates, Spokane, for respondent. Douglas D. Phelps argued.
_________________________________
BURDICK, Chief Justice
The State of Idaho appeals the Kootenai County district court’s grant of Micah Wulff’s
motion to suppress evidence obtained in a warrantless blood draw. That blood draw took place
after Wulff was in custody for driving under the influence. The district court held that the United
States Supreme Court’s holding in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013)
suggests that warrantless blood draws are not always permitted under Idaho’s implied consent
statute. The State argues that McNeely was limited to the exigent circumstances exception to the
warrant requirement and Idaho’s implied consent statute is a valid exception to the warrant
requirement. We affirm the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 2012, a sheriff’s deputy stopped Micah Wulff after observing Wulff’s
vehicle speeding twenty-five to thirty-five miles an hour over the speed limit. The deputy asked
Wulff why he was driving so fast. Wulff replied, “I don’t know, I probably shouldn’t be
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driving.” As Wulff spoke, the deputy smelled an alcoholic beverage odor coming from the
vehicle. The deputy noticed that the smell grew stronger as Wulff exited his vehicle and
observed that Wulff’s eyes were red and bloodshot. Wulff admitted he had been drinking and
then had difficulties with the field sobriety evaluations. The deputy reported that he believed
Wulff was driving under the influence (DUI) based upon Wulff’s field sobriety test, speeding,
admission he had been drinking, and alcohol odor.
The deputy then took Wulff into custody. Wulff refused a breath test, so the deputy
informed Wulff that he would take him to the hospital for a blood draw. Wulff stated that he
understood and accompanied the deputy to his vehicle. At the hospital, Wulff became
uncooperative as a nurse began to prepare his arm for a blood draw. Wulff placed his left arm in
a blocking position and told the nurse “you’re not touching me.” After two security officers
arrived, Wulff allowed the nurse to draw his blood. The deputy did not obtain a warrant for the
blood test. The test results showed a .217 blood alcohol content.
The State charged Wulff with felony DUI. Wulff moved to suppress the blood draw
results. Wulff argued that he did not consent to the blood draw and there were no exigent
circumstances to allow a warrantless blood draw. The State argued that the warrantless blood
draw was appropriate under Idaho’s implied consent statute, Idaho Code section 18-8002,
because Wulff gave his irrevocable implied consent to the blood draw by taking advantage of the
privilege of driving on Idaho’s roads. The State further argued that Missouri v. McNeely did not
decide the constitutionality of implied consent statutes, so Idaho’s implied consent statute allows
warrantless blood draws under the consent exception to the warrant requirement. Alternatively,
the State argued that exigent circumstances justified the warrantless blood draw.
The district court granted Wulff’s motion to suppress. The court first concluded that
McNeely indicated that implied consent statutes cannot act as per se exceptions to the warrant
requirement because McNeely emphasized the importance of the totality of the circumstances.
The court reasoned that while McNeely did not explicitly address implied consent statutes, “it
would be antithetical to interpret the McNeely opinion as permitting warrantless blood draws
simply because a state has legislation that allows such action.” After discounting the State’s
implied consent argument, the court determined that exigent circumstances did not justify the
warrantless blood draw. The State timely appealed.
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II. STANDARD OF REVIEW
We review a district court’s order granting a motion to suppress evidence using a
bifurcated standard of review. State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183 (2009).
This Court accepts the trial court’s findings of fact unless they are clearly erroneous, but may
freely review the trial court’s application of constitutional principles in light of those facts. Id.
We must follow controlling precedent “unless it is manifestly wrong, unless it has proven over
time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious
principles of law and remedy continued injustice.” State v. Watts, 142 Idaho 230, 232, 127 P.3d
133, 135 (2005) (quoting Reyes v. Kit Mfg. Co., 131 Idaho 239, 240, 953 P.2d 989, 990 (1998)).
III. ANALYSIS
A. The district court correctly granted Wulff’s motion to suppress.
The district court granted Wulff’s motion to suppress. The court held that the consent
exception to the warrant requirement did not apply and the officer’s warrantless blood draw was
not justified by exigent circumstances. The court’s holding on exigent circumstances is not at
issue. Instead, the State focuses on the district court’s holding that the Idaho implied consent
statute did not fall into the consent exception to the Fourth Amendment.
The district court stated that “the recent United States Supreme Court case Missouri v.
McNeely, 569 U.S. ___ (2013) places new limits on the ability of law enforcement to conduct a
blood test without a warrant.” The court focused on McNeely’s language that “[w]hether a
warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case
based on the totality of the circumstances.” McNeely, 133 S. Ct. at 1563. The court reasoned that
allowing warrantless blood draws based on Idaho’s implied consent statute would act as a per se
exception to the warrant requirement, which contradicted McNeely’s language that warrantless
blood draws should be examined case by case. After acknowledging that McNeely did not
explicitly address implied consent statutes, the court noted that interpreting the McNeely opinion
as permitting warrantless blood draws simply because a state’s legislation allows them would
make McNeely “a dead letter.” Thus, the court held that the blood draw did not fall within the
consent exception to the Fourth Amendment’s warrant requirement.
The State argues that the consent exception may be implied under Idaho’s implied
consent statute because the issue in McNeely was limited to “nonconsensual” blood testing and
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McNeely’s holding was limited to blood draws taken under the exigency exception. The State
also argues that McNeely endorsed implied consent laws.
Requiring that a person submit to a blood alcohol test is a search and seizure under the
Fourth Amendment to the United States Constitution and Article I Section 17 of the Idaho
Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966); State v. Diaz, 144 Idaho 300,
302, 160 P.3d 739, 741 (2007). “Like the Fourth Amendment, the purpose of Art. I, § 17 is to
protect Idaho citizens’ reasonable expectation of privacy against arbitrary governmental
intrusion.” State v. Holton, 132 Idaho 501, 503, 975 P.2d 789, 791 (1999). We will not address
the Idaho Constitution in this case because the district court’s decision and the parties’ arguments
were confined to the United States Constitution.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.
U.S. Const. amend. IV. Warrantless searches and seizures are presumptively unreasonable under
the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443 454–55 (1971); Diaz, 144
Idaho at 302, 160 P.3d at 741. To overcome this presumption of unreasonableness, the search
must fall within a well-recognized exception to the warrant requirement. Coolidge, 403 U.S. at
455; Diaz, 144 Idaho at 302, 160 P.3d at 741. Exigency and consent are two well-recognized
exceptions to the warrant requirement. Kentucky v. King, 131 S. Ct. 1849 (2011); Diaz, 144
Idaho at 302, 160 P.3d at 741.
1. Exigency and Implied Consent in Idaho
We have held law enforcement officers do not need a warrant for a forced blood draw
based upon the exigency and consent exceptions to the warrant requirement. State v. Woolery,
116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989), abrogated by Missouri v. McNeely, 133 S. Ct.
1552 (2013) (exigency); Diaz, 144 Idaho at 303, 160 P.3d at 742 (consent). As to exigency, this
Court held that warrantless blood draws are permissible under that exception because “the
destruction of the evidence by metabolism of alcohol in the blood provides an inherent exigency
which justifies the warrantless search.” Woolery, 116 Idaho at 370, 775 P.2d at 1212. In other
words, the fact that our bodies metabolize alcohol over time means that valuable evidence is lost
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in the time required to get a warrant, which created exigent circumstances to allow a warrantless
blood draw. See State v. DeWitt, 145 Idaho 709, 712, 184 P.3d 215, 218 (Ct. App. 2008).
We also held that Idaho’s implied consent statute allows warrantless blood draws under
the consent exception. Diaz, 144 Idaho at 302–03, 160 P.3d at 741–42. Idaho Code section 18-
8002 provides that a person gives “implied consent” to evidentiary testing, including blood
draws, when that person drives on Idaho roads and a police officer has “reasonable grounds to
believe that person has been driving or in actual physical control of a motor vehicle in violation
of [Idaho’s DUI statute].” 1 That statute provides penalties for any driver who refuses to comply
with testing, including a one-year driver’s license suspension and a $250 fine for the first refusal.
I.C. § 18–8002(4). Implied consent to evidentiary testing includes consent to Breathalyzer tests
and blood tests. I.C. § 18–8002(9). In Diaz, police ordered a blood draw over a driver’s
objections because the officer had reasonable grounds to believe the driver was under the
influence. 144 Idaho at 303, 160 P.3d at 742. We reasoned that “[b]ecause Diaz had already
given his implied consent to evidentiary testing by driving on an Idaho road, he also gave his
consent to a blood draw.” Id. We based our holding solely on the implied consent exception.
Therefore, prior to Missouri v. McNeely, warrantless blood draws fit under both exceptions to the
warrant requirement.
2. Missouri v. McNeely’s impact on exigency and implied consent as exceptions to the warrant
requirement.
Missouri v. McNeely indicates that Idaho cannot use a per se exigency exception to the
warrant requirement based upon the natural dissipation of alcohol in the bloodstream. In
McNeely, the defendant was pulled over for driving erratically, refused a Breathalyzer test, and
was taken to a hospital for a warrantless forced blood draw. 133 S. Ct. at 1556–57. The
defendant moved to suppress his blood test results, arguing the warrantless blood draw violated
his rights under the Fourth Amendment. Id. The United States Supreme Court held that “the
natural metabolization of alcohol in the bloodstream” did not present a “per se exigency that
justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
1
Idaho Code section 18–8002 (1) states:
Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to
have given his consent to evidentiary testing for concentration of alcohol as defined in section 18-8004, Idaho Code,
and to have given his consent to evidentiary testing for the presence of drugs or other intoxicating substances,
provided that such testing is administered at the request of a peace officer having reasonable grounds to believe that
person has been driving or in actual physical control of a motor vehicle in violation of the provisions of section 18-
8004, Idaho Code, or section 18-8006, Idaho Code.
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testing in all drunk-driving cases” Id. at 1556. The Court held that instead, “exigency in this
context must be determined case by case based on the totality of the circumstances.” Id. 2 In other
words, the body’s ability to metabolize alcohol is just one factor that a court can consider as part
of the totality of circumstances test. 3 The Court in McNeely cited State v. Woolery as a
jurisdiction that has held the body’s natural dissipation of alcohol alone provides a per se
exception to the warrant requirement in DUI cases. McNeely, 133 S. Ct. at 1558, n. 2.
Accordingly, McNeely abrogated Woolery’s holding that the natural dissipation of alcohol
always creates an exigency exception in drunk-driving cases. The rule is now that the exigency
exception applies based on the totality of the circumstances, which is analyzed case by case.
While Idaho’s exigency exception no longer applies in every drunk-driving case, current
Idaho precedent holds that forced blood draws based on the implied consent exception fall under
the alternate consent exception to the warrant requirement. Diaz, 144 Idaho at 303, 160 P.3d at
742. Missouri v. McNeely did not directly address whether warrantless forced blood draws can be
justified by implied consent and its holding applied to the exigency exception only. McNeely,
133 S. Ct. at 1568. However, McNeely repeatedly indicated that “[w]hether a warrantless blood
test of a drunk-driving suspect is reasonable must be determined case by case based on the
totality of the circumstances.” Id. at 1563. Here, the district court determined that McNeely
applied to all warrantless blood draws, stating “[McNeely] places new limits on the ability of law
enforcement to conduct a blood test without a warrant.” However, the State argues that the
United States Supreme Court’s holding in McNeely applies only to exigency. Thus, the issue is
whether McNeely’s holding is narrow and limited to the exigency exception, or is broader and
applies to all per se exceptions to the warrant requirement.
The argument that McNeely applies only to exigency requires a narrow reading of
McNeely’s holding. Indeed, in the context of the exigency exception and only after extensive
analysis of the exigency exception, the United States Supreme Court stated that “[w]hether a
warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case
based on the totality of the circumstances.” McNeely, 133 S. Ct. at 1563. Also, the plurality
2
The Court in McNeely repeatedly emphasized the particular circumstances that go into the totality of the
circumstances analysis. For example, the Court emphasized that the analysis varies as to the “reasonableness” of
whether a warrant could have been obtained. Id. at 1559. Across the country different areas have different resources
in place to process warrants. Id. at 1562. The Court also noted that the fact that a traffic stop is “routine” does not
mean a warrant is always required. Id. at 1568.
3
The Court did not hold that the body’s natural dissipation of alcohol can never provide an exigency exception to
the warrant requirement, only that it cannot provide a per se exception.
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opinion cited implied consent laws as one of a state’s “broad range of legal tools to enforce their
drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual
blood draws.” Id. at 1566 (plurality opinion). The Court noted that these “implied consent laws []
require motorists, as a condition of operating a motor vehicle in the State, to consent to BAC
testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” Id.
The plurality’s reference to implied consent as a tool to enforce drunk driving laws combined
with the holding on exigency make it plausible to read McNeely as only applying to exigency.
However, McNeely’s overall discussion suggests a broader reading: that implied consent
is no longer acceptable when it operates as a per se exception to the warrant requirement because
the Court repeatedly expressed disapproval for categorical rules. The Court began its analysis by
discussing that Schmerber v. California applied the totality of the circumstances approach.
McNeely, 133 S. Ct. at 1559–60. After acknowledging that the body’s metabolic processes meant
a person’s blood alcohol content declines with time, the Court nevertheless criticized the State’s
per se “categorical rule.” Id. at 1560–61. The Court noted that some circumstances would make
obtaining a warrant so impractical that the body’s natural dissipation of alcohol could support
exigency, but that was “a reason to decide each case on its facts, as we did in Schmerber, not to
accept the ‘considerable overgeneralization’ that a per se rule would reflect.” Id. at 1561. Thus,
according to the Court, “[i]n those drunk-driving investigations where police officers can
reasonably obtain a warrant before a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id.
After that, the Court discussed technological advances that allow for warrants to be processed
faster, which also would be involved in the analysis. Id. at 1561–62. This discussion ended with
the Court stating, “Whether a warrantless blood test of a drunk-driving suspect is reasonable
must be determined case by case based on the totality of the circumstances.” Id. at 1263. Later in
its opinion, the Court again emphasized that a warrant might be required after a driver refuses to
consent to a blood draw:
Here and in its own courts the State based its case on an insistence that a
driver who declines to submit to testing after being arrested for driving under the
influence of alcohol is always subject to a nonconsensual blood test without any
precondition for a warrant. That is incorrect.
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McNeely, 133 S. Ct. at 1568. As a result, McNeely’s overall discussion supports reading the
Court’s preference for a totality of the circumstances requirement as going beyond just the
exigency exception.
Others courts have read McNeely broadly as prohibiting all per se exceptions to the
warrant requirement. See Weems v. State, 434 S.W.3d 655 (Tex. Ct. App. 2014); Aviles v. State,
2014 WL 3843756 (Tex. Ct. App. Aug. 6, 2014). These Texas courts have found this reading is
supported by the U.S. Supreme Court’s treatment of Aviles v. State, 385 S.W.3d 110 (Tex. Ct.
App. 2012), cert. granted, judgment vacated, 134 S. Ct. 902 (U.S. 2014). We agree.
The Texas Court of Appeals in Aviles v. State addressed whether Texas’s implied consent
statute was an exception to the warrant requirement. In Aviles, a law enforcement officer arrested
a defendant with probable cause for DUI and discovered the defendant had two prior DUI
convictions. 385 S.W.3d at 112. After reading the defendant his statutory warning that he could
refuse evidentiary testing, the officer requested that the defendant provide a blood or breath
specimen. Id. The defendant refused, and the officer then required the defendant to submit to a
blood draw under Texas Transportation Code section 724.12 (b)(3)(B):
A peace officer shall require the taking of a specimen of the person’s breath or
blood under any of the following circumstances . . . [including when] at the time
of the arrest, the officer possesses or receives reliable information from a credible
source that the person, on two or more occasions, has been previously convicted
of or placed on a community supervision for an offense under Section 49.04
[DWI].
385 S.W.3d at 112. The trial court admitted the defendant’s blood test results based on this
implied consent statute. Id. at 113. The Texas Court of Appeals affirmed, stating that because the
defendant’s refusal took place when he had two prior DUIs, this was one of the statutory
“circumstances” that allowed a warrantless blood draw. Id. at 116. The court therefore concluded
that the warrantless blood draw was allowed under the Transportation Code and did not violate
the defendant’s Fourth Amendment rights. Id. Thus, the Aviles court’s holding that a warrantless
blood draw was constitutional was based exclusively on the implied consent exception to the
warrant requirement.
After granting certiorari in Aviles, the United States Supreme Court vacated the judgment
and remanded the case “for further consideration in light of Missouri v. McNeely.” 134 S. Ct. 902
(U.S. 2014). While this remand does not state anything further about how McNeely should be
interpreted, the Court’s remand must indicate that McNeely’s holding includes examining the
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totality of the circumstances in all cases where an officer orders a forced warrantless blood draw.
See Weems, 434 S.W.3d at 665 (“McNeely, however, clearly proscribed what it labeled
categorical or per se rules for warrantless blood testing, emphasizing over and over again that
the reasonableness of a search must be judged based on the totality of the circumstances
presented in each case.”). Therefore, distinguishing McNeely based on the fact it involved
exigent circumstances is not viable because vacating and remanding Aviles in light of McNeely
showed the United States Supreme Court rejected Texas’s implied consent statute as a per se
exception to the Fourth Amendment.
Finally, irrevocable implied consent operates as a per se rule that cannot fit under the
consent exception because it does not always analyze the voluntariness of that consent.
Voluntariness has always been analyzed under the totality of the circumstances approach:
“whether a consent to a search was in fact ‘voluntary’ . . . is a question of fact to be determined
from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
Further, the State has the burden to prove that “consent was, in fact, freely and voluntarily
given.” Id. at 222 (quoting Bumper v. N. Carolina, 391 U.S. 543, 548 (1968)). Consent is not
voluntary if it is “the product of duress or coercion, express or implied.” Schneckloth, 412 U.S. at
227. When the Court has determined whether a suspect’s consent was voluntary or coerced, its
decisions “each reflected a careful scrutiny of all the surrounding circumstances” and “none of
them turned on the presence or absence of a single controlling criterion.” Id. at 226. The Court
has also stated
The Fourth Amendment does not proscribe all state-initiated searches and
seizures; it merely proscribes those which are unreasonable. Thus, we have long
approved consensual searches because it is no doubt reasonable for the police to
conduct a search once they have been permitted to do so. 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?
Florida v. Jimeno, 500 U.S. 248, 250–51 (1991) (internal citations omitted). Given that “[t]he
touchstone of the Fourth Amendment is reasonableness,” id. at 250, and that the United States
Supreme Court has repeatedly emphasized a totality of the circumstances approach is necessary
to determine voluntariness for consent, requiring a totality of the circumstances approach to
determine a driver’s consent fits within the Court’s existing precedent.
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Analyzing consent under a totality of the circumstances approach considers whether a
person could change his mind and revoke his consent. A holding that the consent implied by
statute is irrevocable would be utterly inconsistent with the language in McNeely denouncing
categorical rules that allow warrantless forced blood draws. This is why the district court
remarked that “implied consent statutes would have the effect of making the McNeely decision of
little or no consequence.”
The State argues the United States Supreme Court has specifically held implied consent
laws are valid. Indeed, the United States Supreme Court has upheld implied consent statutes. See
Illinois v. Batchelder, 463 U.S. 1112 (1983); S. Dakota v. Neville, 459 U.S. 553 (1983). But in
these cases, the Court upheld the statutory consequences placed on defendants who refused to
comply. The Court did not address the appropriateness of implied consent as an exception to the
Fourth Amendment’s warrant requirement. Thus, the State’s reliance on these cases does not
demonstrate that implied consent laws are constitutional.
Because of the United States Supreme Court’s language in McNeely, remand of Aviles,
and precedent requiring a totality of the circumstances analysis to determine voluntary consent,
we read McNeely as prohibiting all per se exceptions to the warrant requirement. This conclusion
is consistent with other states that have considered the issue. E.g., Byars v. State, 130 Nev. Adv.
Op. 85, ___ P.3d ___ (2014); State v. Declerck, 317 P.3d 794, 797 (Kan. Ct. App. 2014).
3. Idaho’s implied consent statute is an unconstitutional per se exception to the warrant
requirement.
The issue is then whether Idaho’s implied consent statute is a per se rule that
categorically allows warrantless blood draws. Idaho’s implied consent statute must jump two
hurdles to qualify as voluntary: (1) drivers give their initial consent voluntarily and (2) drivers
must continue to give voluntary consent. Drivers in Idaho give their initial consent to evidentiary
testing by driving on Idaho roads voluntarily. State v. Diaz, 144 Idaho 300, 303, 160 P.3d 739,
742 (2007). Because consent is implied based on driving on Idaho’s roads, a further issue is
whether the consent exception to the Fourth Amendment can apply after a driver attempts to
revoke his consent to a blood draw.
The State argues that drivers cannot revoke their implied consent. While Idaho’s statute
recognizes the possibility that a driver can refuse a blood test and face a civil penalty, we have
stated that “[n]othing in Idaho Code § 18-8002 limits the officer’s authority to require a
defendant to submit to a blood draw.” Diaz, 144 at 303, 160 P.3d at 742. We have also stated:
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“The Idaho legislature has acknowledged a driver’s physical ability to refuse to submit to an
evidentiary test, but it did not create a statutory right for a driver to withdraw his previously
given consent to an evidentiary test for concentration of alcohol, drugs or other intoxicating
substances.” State v. Woolery, 116 Idaho 368, 372, 775 P.2d 1210, 1214 (1989) (emphasis in
original). Thus, we have held that in Idaho a person cannot revoke his consent; any evidence an
officer obtains from a blood test, even when that person resists or withdraws consent, will be
admitted based on statutory implied consent. Because Idaho does not recognize a driver’s right to
revoke his implied consent, Idaho has a per se exception to the warrant requirement.
Because McNeely prohibits per se exceptions to the warrant requirement and the district
court correctly understood Idaho’s implied consent statute operated as a per se exception, Idaho’s
implied consent statute does not fall under the consent exception to the Fourth Amendment of
the United States Constitution. Thus, we overrule Diaz and Woolery to the extent that they
applied Idaho’s implied consent statute as an irrevocable per se rule that constitutionally allowed
forced warrantless blood draws. We hold the district court properly concluded that Idaho’s
implied consent statute was not a valid exception to the warrant requirement. We affirm the
district court’s grant of Wulff’s motion to suppress.
IV. CONCLUSION
We affirm the district court’s grant of Wulff’s motion to suppress.
Justices EISMANN, J. JONES, HORTON and WALTERS, Pro Tem, CONCUR.
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