Idaho implied consent statute is not a per se exception to the warrant requirement under McNeely

The Idaho implied consent statute is not a per se exception to the warrant requirement under McNeely. State v. Wolff, 2014 Ida. LEXIS 286 (October 29, 2014):

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: “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.