{"id":1669,"date":"2009-02-11T09:32:32","date_gmt":"2008-01-07T03:56:44","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-07T03:56:44","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1669","title":{"rendered":"Implied consent law still gives defendant power to refuse, but a comment on refusal is permissible"},"content":{"rendered":"

Implied consent law does not eliminate defendant’s power to refuse to consent. But, comment on refusal does not violate the constitution. State v. Buell<\/a>, 145 Idaho 54, 175 P.3d 216 (App. 2008):<\/p>\n

It must be acknowledged, of course, that an individual who has been instructed by a police officer to perform field sobriety tests has the power to prevent the tests by refusing to cooperate, but that power does not equate to a constitutional right to refuse. The Idaho Supreme Court explored this dichotomy between a right to refuse and the power to prevent in a related context in State v. Woolery<\/em>, 116 Idaho 368, 775 P.2d 1210 (1989), where a blood sample, to be tested for alcohol concentration, was taken without consent from a driver injured in an automobile accident. The Court considered the application of Idaho’s implied consent law, I.C. \u00a7 18-8002, which provides that anyone who drives in this state is deemed to have given consent to an evidentiary test of breath, blood or urine for intoxicants, but which also provides certain consequences for a driver’s refusal to submit to the test. The Court observed: “‘Consent’ describes a legal act; ‘refusal’ describes a physical reality. By implying consent, the statute removes the right of a licensed driver to lawfully refuse, but it cannot remove his or her physical power to refuse.” Woolery<\/em>, 116 Idaho at 372, 775 P.2d at 1214 (quoting State v. Newton<\/em>, 636 P.2d 393, 397 (Or. 1981)).<\/p>\n

The case before us involves no statutory implied consent like that applied in Woolery<\/em>, but it does involve a separate exception to the warrant requirement established in Ferreira<\/em>, which allows an officer to conduct field sobriety tests on reasonable suspicion. Like the driver in Woolery<\/em>, Buell had no right recognized in law to refuse the tests, and his mere retention of physical power to prevent the testing does not mean that his consent, in a legal sense, was necessary for lawful administration of the tests. In accord, see McCormick v. Municipality of Anchorage<\/em>, 999 P.2d 155, 159-62 (Alaska Ct. App. 2000) (stating in dicta that because there is no constitutional right to refuse consent to field sobriety tests requested by an officer with reasonable suspicion, evidence of the refusal of consent was admissible at the driver’s trial); State ex rel. Verburg v. Jones<\/em>, 121 P.3d 1283, 1285-86 (Ariz. Ct. App. 2005) (holding same). Consequently, mere involuntariness in Buell’s performance of the tests demonstrates no Fourth Amendment violation.<\/p><\/blockquote>\n

Deciding the search in an appeal in a criminal case binds a later forfeiture action. Padgett v. State<\/a>, 289 Ga. App. 95, 656 S.E.2d 233 (2008).*<\/p>\n

Defendant’s detention as a probationer was based on reasonable suspicion since his assault victim named him as the person who committed an assault. Therefore, defense counsel was not ineffective for not challenging the basis for the stop. State v. Everett, 2007 Del. Super. LEXIS 374 (November 30, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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