SD: State DUI advice card tells detainees they’ve already consented by driving drunk, so the state can’t claim consent was voluntary

The state DUI advisement card tells the detainee that he had already consented to a taking of his blood, so the consent was coerced and void. State v. Medicine, 2015 SD 45, 2015 S.D. LEXIS 77 (June 10, 2015):

[*P11] In addition to supporting the circuit court’s finding that Medicine did not know he had the right to refuse a blood test, the language of the DUI advisement card is also relevant to our totality-of-the-circumstances analysis in another respect: the DUI advisement card is evidence of coercion. “[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973). “[A]ccount must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 229, 93 S. Ct. at 2049. The State cannot meet its burden of proving voluntary consent “by showing a mere submission to a claim of lawful authority.” Royer, 460 U.S. at 497, 103 S. Ct. at 1324. In Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), for example, law enforcement officers went to a defendant’s residence and informed his grandmother, the owner of the property, that they possessed a warrant to search the premises. Id. at 546-48, 88 S. Ct. at 1790-91. She replied, “Go ahead[.]” Id. at 546, 88 S. Ct. at 1790 (internal quotation marks omitted). In invalidating the search, the Supreme Court held, “A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” Id. at 549, 88 S. Ct. at 1792. The same is true when “the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.” Id. at 549-50, 88 S. Ct. at 1792.