Under "implied consent" laws in West Virginia and most other states, suspects involved in a traffic stop are expected to submit to a breathalyzer test if asked to do so by a law enforcement officer. Most people realize that they have the right to refuse the test, but it will likely result in an automatic, one-year suspension of their driver's license.
But what if you didn't know you had the right to refuse breath and blood tests? In many states, officers are required to make refusal rights clear, but this doesn't always happen. This was recently the subject of a state Supreme Court ruling in another state.
In 2014, a South Dakota driver was pulled over. The traffic stop ended in arrest, at which point the officer read a scripted DUI card used by all police in Rapid City. Later on, the suspect was told that he needed to submit to a blood test, which he did.
He later filed a motion to suppress evidence of the blood test results because he was not aware that he had the right to refuse. A lower court ruled that the man's "consent" had been involuntary for several reasons. First, the court said, the scripted DUI card contained "coercive language." Second, the man had already been arrested when asked to submit to a blood test. And third, he was unaware (and apparently was not informed) that he had the right to refuse the test.
Earlier this month, the South Dakota Supreme Court upheld the lower court's ruling in this case.
This is not an outcome that all DUI suspects should expect. But it nonetheless reminds us that procedural details are important and must be followed. If police officers fail to follow procedure and violate the rights of DUI defendants, those violations may provide an opportunity for defendants to challenge the DUI charges they are facing.