Ripon, WI asked in Civil Rights for Wisconsin

Q: Is implied consent constitutional why or why not?

This is in terms of breath tests and other alcohol tests taken by police officers.

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1 Lawyer Answer

Brady R. Henderson

Answered
  • Civil Rights Lawyer
  • Milwaukee, WI
  • Licensed in Wisconsin

A: The short answer is yes. Courts have consistently upheld implied consent testing against constitutional challenges. At least in theory, the subject person's "consent" for the alcohol test is given when they become (or remain) a licensed driver, such that the test does not constitute an illegal involuntary search. As many driver's ed instructors love saying: "Driving is a privilege, not a right." The legality of Implied Consent laws is based largely on that concept, which is legally correct, but not quite the whole story.

Just because the concept of Implied Consent is constitutional does NOT mean that every test or consequence for a test refusal is constitutional. Testing should be legally limited to licensed drivers while driving (rather than, say, a passenger in a car, or someone stopped on the sidewalk on suspicion of public intoxication). There are also very specific guidelines that law enforcement must follow, and test results can sometimes be thrown out if they don't. An otherwise legal test might also follow an illegal traffic stop, depending on the circumstances.

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