NE: The fact defendant in a DUI case has a difficult choice between consenting to BAC search or refusing consent with the attendant possible penalties does not make his consent involuntary

The fact defendant in a DUI case has a difficult choice between consenting to BAC search or refusing consent with the attendant possible penalties does not make his consent involuntary. State v. Modlin, 291 Neb. 660, 2015 Neb. LEXIS 152 (August 21, 2015):

Notwithstanding the foregoing facts, Modlin makes a variety of arguments, all to the effect that he did not actually consent voluntarily to the blood test. Primary among his arguments 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 criminal 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 submitting to the chemical test and facing serious consequences for refusing to submit, pursuant to the implied consent 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'”).