ID: Implied consent remains an exception to the warrant requirement under McNeely

Implied consent remains an exception to the warrant requirement under McNeely. State v. Ortega-Vastida, 2017 Ida. App. LEXIS 15 (Feb. 9, 2017):

The district court incorrectly interpreted McNeely and Wulff to eliminate implied consent as an exception to the warrant requirement. Implied consent remains a valid exception to the warrant requirement so long as it may be withdrawn. See, e.g., Eversole, 160 Idaho at 243, 371 P.3d at 297. Because the court incorrectly interpreted McNeely and Wulff, it failed to recognize that implied consent applied in this case. Ortega-Vastida voluntarily drove on an Idaho road. Thus, Ortega-Vastida voluntarily gave his initial consent to a test for the presence of alcohol. Further, the district court found that Ortega-Vastida “acquiesced to [Officer Kelly’s request to go to the hospital] for a blood draw by standing and following the officer to his vehicle … [,] there is no evidence of coercion on the part of Officer Kelly. There is no evidence that [Ortega-Vastida] objected or was in anyway resistant to going to the hospital.” Additionally, the district court found that Officer Kelly left Ortega-Vastida’s decision to sign the consent-to-draw card to his discretion and he “signed the consent-to-draw card at the hospital.” There is no evidence that Ortega-Vastida affirmatively withdrew his initial, implied consent by refusing, objecting to, or protesting the actual blood draw. Rather, the evidence shows that Ortega-Vastida continued to give voluntary consent until the hospital staff drew his blood. Thus, the district court erred in failing to apply implied consent.

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