The City of Omaha, Nebraska has passed an ordinance that makes it a crime to refuse a breath test during an investigation for driving under the influence or DUI. Unlike other similar ordinances, Omaha’s does not simply provide for administrative penalties for refusing, such as a license revocation. Omaha’s ordinance provides for criminal penalties for a refusal to submit to a breath test. Is this legal though? The issue is currently before the Supreme Court of the United States (SCOTUS) with a ruling expected in June; however, every motorist who travels through the City of Omaha in the meantime is subject to the law as it currently stands.
What Does the Ordinance Make Illegal?
Omaha City Ordinance § 36-116 (4) in relevant part provides,
Any person arrested as provided in this section may, upon the direction of a peace officer, be required to submit to a chemical test or tests of his or her blood, breath, or urine for a determination of the concentration of alcohol or the presence of drugs. Any person who refuses to submit to such test or tests required pursuant to this section shall be subject to the administrative revocation procedures provided in sections 60-6,205 to 60-6,208 of the Nebraska Revised Statutes and shall be guilty of a crime and upon conviction punished as provided in sections 36-119 and 36-120. (Emphasis added)
How Is Omaha’s Refusal Law Different Than Other Similar Laws?
By now, most states across the United States have enacted an “implied consent law.” Although each state has its own law, the concept and purpose of an implied consent law does not differ much from one state to the next. In essence, an implied consent law says that if a motorist chooses to operate a motor vehicle within the state on a public roadway the motorist gives his/her “implied consent” to submit to a chemical test if an officer has reason to believe the motorist is driving under the influence. The difference between the City of Omaha’s ordinance and other similar laws is that other implied consent laws only impose an administrative penalty, such as a license revocation, for a violation of the law. The City of Omaha has criminalized refusing a breath test. Omaha is not alone, however. Other jurisdictions have passed similar laws making it a crime to refuse a chemical test.
The Question — Does the Omaha Ordinance Violate the U.S Constitution?
The question before SCOTUS is whether or not the Omaha ordinance (and others like it) violate the Fourth Amendment to the Constitution which reads, in relevant part, as follow:
“The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
The 4th Amendment has long stood for the proposition that a law enforcement officer may not conduct a search and seizure without first obtaining a warrant unless one of the narrow exceptions to the warrant requirement applies.
The Current State of the Law
Currently, eleven other states (Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, North Dakota, Rhode Island, Vermont, and Virginia) have laws similar to the Omaha city ordinance. Challenges to the laws have been raised in several of those states with mixed results. The Supreme Courts in Hawaii and Kansas found the consent statutes unconstitutional. State v. Won, 361 P.4d 1195, 1198-1199 (Haw. 2015) and State v. Ryce, No. 111,698 (Kansas 2016). On the other hand, the high courts in North Dakota and Minnesota upheld the implied consent refusal statutes. State v. Birchfield, 858 N.W.2d 302 (North Dakota 2015) and Bernard v. Minnesota, 859 N.W.2d 762 (Minnesota 2015). The Supreme Court of the United States will hear the North Dakota and Minnesota matters after granting petitions on writ of certiorari in 2015.
The Legal Issues Involved
- The City of Omaha’s Argument — The law has long held that a chemical test is a “search” for purposes of a 4th Amendment argument. With that established, a chemical test may only be conducted after obtaining a warrant or if an exception to the warrant requirement applies. “Consent” is the most commonly used exception to the warrant requirement. In short, if you consent to a search a warrant is not necessary. The City of Omaha is effectively arguing that a motorist has provide the requisite consent by virtue of the implied consent law and, as such, no warrant is needed to conduct a chemical test. The City further argues that a motorist’s refusal may then be punished as a criminal offense.
- The Other Side of the Argument – it is well established within the law that a warrant should be obtained whenever practical and that a search is illegal if conducted without a warrant unless an established exception applies. Those exceptions include:
- Exigency — exigency applies when there is no time to obtain a warrant. Here, it is difficult to argue that a telephonic warrant could not be obtained in the time it takes to transport a suspect to the station and/or during the required 15-minute observation period prior to the test.
- Search incident to arrest – the purpose of this exception is to protect an officer in the event a suspect has a weapon or contraband. Neither concern applies here.
- “Special needs” – somewhat of a “catch all” exception; however, the cases in which this exception was used are not analogous to the City of Omaha ordinance.
- Consent – for consent to work as an exception, the consent must have been given voluntarily. Moreover, if an implied consent statute does not allow for the withdrawal of consent, as is effectively the case here, how is that consent voluntary?
The SCOTUS Decision
It should be clear that the City of Omaha ordinance violates the Fourth Amendment to the U.S. Constitution. SCOTUS is expected to rule on the two cases under review in the near future at which time an update will be provided.
If you have been arrested for driving under the influence, or DUI, in Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced DUI defense lawyer.