united-states constitutional-law new-york-state search-and-seizure consent
What are the limits of &quot;implied consent&quot; when obtaining a driver&#39;s license?
<p>This question comes out of reading <a href="http://www.nytimes.com/2016/04/28/science/driving-texting-safety-textalyzer.html?_r=0" rel="nofollow noreferrer">this New York Times article</a> (quoted below), about a bill that would allow officers to use a &quot;textalyzer&quot; to digitally search phones for evidence that the  phones had been handled recently:</p>
<blockquote>
<p>The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer.</p>
</blockquote>
<p>The intention is behavior change:</p>
<blockquote>
<p>“We need something on the books where people’s behavior can change,” said [Félix W. Ortiz, a Democratic assemblyman who was a sponsor of the bipartisan Textalyzer bill], who pushed for the state’s 2001 ban on hand-held devices by drivers. If the Textalyzer bill becomes law, he said, “people are going to be more afraid to put their hands on the cellphone.”</p>
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<p><a href="http://www.nytimes.com/2014/06/26/us/supreme-court-cellphones-search-privacy.html" rel="nofollow noreferrer">The US Supreme Court has unanimously ruled that when somebody is arrested, their phone can't be searched without a warrant.</a></p>
<blockquote>
<p>But the bill’s authors say they have based the Textalyzer concept on the same <strong>“implied consent” legal theory that allows the police to use the Breathalyzer: When drivers obtain a license, they are consenting in advance to a Breathalyzer</strong>, or else they will risk the suspension of their license.</p>
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<p><em>(Emphasis added.)</em></p>
<p>The analogy to the Breathalyzer is based on comparability of dangers, too:</p>
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<p>Deborah Hersman, the president of the nonprofit National Safety Council and a former chairwoman of the National Transportation Safety Board, ... said the Textalyzer-Breathalyzer comparison was apt because looking at and using a phone can be as dangerous as driving drunk. “Why are we making a distinction between a substance you consume and one that consumes you?”</p>
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<p><strong>How far does this &quot;implied consent&quot; legal theory go?</strong>  Can it be extended to mean that drivers' license applicants give &quot;implied consent&quot; to have their cars, homes, or body cavities searched in detail, or give &quot;implied consent&quot; to physical control by police (to enforce any failures to comply with an instruction), etc., if police request that power and find a suitably sympathetic audience in the General Assembly?</p>
<p>It's an old argument that increasing police search powers increases safety, because it allows the police to search out and stamp out whatever behavior creates the danger to others.  Where's the line, if any, which limits the extent of how far that can go?  What do people really consent to when applying for a driver's license?</p>
<p>Can &quot;implied consent&quot; be retroactive, such that if I have a New York driver's license today, that means I've given &quot;implied consent&quot; to whatever permissions the General Assembly grants police a couple years after I've gotten that license?  If not, does a license renewal establish that &quot;consent?&quot;  There is some precedent in that having gotten a NY license a few years ago <em>does</em> indicate consent to be bound by traffic laws including updates and changes that occur during the period of license validity. Is &quot;implied consent&quot; to searches one of the topics covered by that?</p>
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<p>This is tagged for New York, but as the article notes:</p>
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<p>If it were to pass in New York,... it could well spread in the same way that the hands-free rules did after New York adopted them.</p>
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<p>So feel free to answer for other jurisdictions, if they are a better fit for your expertise, and note that in your answer.</p>

<p>Breathalyzer tests are distinct from blood tests because the former does not  "implicat[e]  significant  privacy  concerns" (see <a href="https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf" rel="nofollow noreferrer">Birchfeld v. ND</a>). A cell phone is like a blood test, because it implicates significant privacy concerns, especially the level of electro-snooping that would be required to determine if someone had recently committed a phone-use offense. As the court held,</p>

<blockquote>
  <p>Because  the  impact  of  breath   tests  on  privacy  is  slight, 
  and   the  need  for  BAC  testing  is  great,   the  Fourth 
  Amendment  permits warrantless breath tests incident to arrests for
  drunk driving.</p>
</blockquote>

<p>A breath test might (but also might not) also satisfy the exigent-circumstances exception (waiting some number of hours for a warrant can easily result in the destruction of evidence), but a cell phone case could not give rise to such an exception.</p>

<p>It should perhaps be noted that the "implied consent" laws are misnamed, because consent is not the issue. The 4th Amendment ban is on <em>unreasonable</em> searches, not unconsented searches. If you actually consent, it is reasonable for the police to search. I am not aware of any ruling to the effect that "because the defendant <em>consented</em>, the search is valid". In the context of breathalyzer law and case-law, an essential component of what makes the search reasonable is that it is incident to an arrest. With or without consent, or an implied consent law,</p>

<blockquote>
  <p>Having  assessed  the  effect  of  BAC  tests  on  privacy   interests
  and the need for such tests, we conclude that the  Fourth   Amendment 
  permits   warrantless   breath   tests    <em>incident  to  arrests</em>  for 
  drunk  driving.</p>
</blockquote>

<p>Extending "implied consent" to cause-unrelated searches of cars, homes, or body cavities might not pass strict scrutiny. The state has a legitimate interest in public safety which justifies some minimal intrusion, but adding a provision that "when you drive, you give implied consent to searches of everything" is not narrowly tailored. But since driving is a <a href="https://law.stackexchange.com/questions/8917/what-are-my-privileges-as-opposed-to-my-rights">privilege</a> and not a right, the state has much more leeway to give you an ultimatum: if you don't cooperate with the search, you can lose your license. On the other hand, SCOTUS has not actually approved of this slogan about driving being a privilege.</p>

<p>Something noteworthy from Birchfield is that the court also disapproves of blood tests <em>because</em> a less invasive method of achieving the result is available, and they grant that "Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit". There being no less-invasive alternative means of realizing the legitimate state interest in stopping distracted driving, I actually expect that when this comes to pass and the matter ends up at SCOTUS, there will be another important change in search law (but "implied consent" will still be irrelevant).</p>

<p>Implied consent does NOT rest upon the acquiring of a license.  (Otherwise, someone who never had a license would be immune.)  Rather, it is triggered by driving in the state.</p>

<p>According to the Supreme Court case <a href="https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf" rel="nofollow noreferrer">Birchfield v. North Dakota</a>, criminal penalties for refusing breath tests (but not blood tests) are OK.  However, one of the considerations is that evidence might be destroyed (by normal metabolism) while the warrant is being sought.  This is less likely to happen when dealing with a cell phone.</p>

<p>I don't know exactly where the line is when it comes to implied consent, but the Court assures us that there IS a line somewhere, and blood tests are on the wrong side of it:</p>

<blockquote>
  <p>It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test.  There must be a limit to the consequences to which motor­ists may be deemed to have consented by virtue of a deci­sion to drive on public roads</p>
</blockquote>
