According to Section 11-501.6 of the Illinois Vehicle Code, any driver involved in a fatal motor vehicle accident consents as a matter of law to chemical testing. (625 ILCS 5/11-501.6.) If the driver refuses to permit the test, his or her driver’s license is automatically suspended by the Secretary of State. During its May term, the Illinois Supreme Court heard oral arguments in McElwain v. The Office of the Secretary of State, which challenges Section 11-501.6 as an unlawful search under the Fourth Amendment.
McElwain began when the plaintiff was involved in a fatal accident with a motorcycle. Although the plaintiff’s vehicle was inventoried, the plaintiff wasn’t asked to submit to chemical testing at the scene of the accident. After the inventory turned up what appeared to be marijuana in the car, the police spoke to the plaintiff again two days later and asked him to submit to chemical testing. He refused, and his license was suspended for 36 months. He filed a petition for administrative review, challenging the constitutionality of the statute. The Circuit Court sided with the plaintiff, striking down the statute.
Counsel from the Attorney General’s office began the argument, representing the Secretary of State. Counsel argued that the case wasn’t properly analyzed under the Fourth Amendment’s special needs/exigent circumstances doctrine at all, but rather as a question of whether the condition – automatic consent – was an unconstitutional burden on the privilege of driving. The doctrine of unconstitutional conditions and the special needs exception to the Fourth Amendment are not coextensive, counsel argued; the conditions doctrine operates in civil law, which the special needs exception is a criminal doctrine. Counsel argued that if the plaintiff is correct and the implied consent statute can only be applied where a warrantless search would be permitted, then a host of U.S. Supreme Court cases were wrongly decided. Justice Thomas read a portion of the Court’s decision regarding the automatic consent statute from Fink v. Ryan, and asked counsel whether the Court hadn’t pretty clearly upheld the statute only because of the diminished expectation of privacy at accident scenes. If that were so, Justice Thomas wondered, didn’t the Court either have to read a time limit into the statute to preserve its constitutionality, or hold the statute unconstitutional as applied to the plaintiff? Counsel argued that Fink was a special needs exception case, not an unconstitutional conditions case. There was no question that a warrantless search wouldn’t be permitted under the circumstances in McElwain, counsel conceded. But that isn’t the issue. For a condition to be permissible, the two part test is whether there is a nexus between the condition and a legitimate state interest, and whether the burden on rights is roughly proportional to the government interest. The first part was certainly satisfied, according to counsel, by Government’s compelling interest in fighting drunk driving. Justice Thomas asked what the nexus was between automatic consent to a test remote in time from the accident and that interest. Counsel answered that that point went to the second issue, the question of proportionality. Even though the search was remote in time, the burden on the plaintiff’s rights was modest. Justice Burke asked how reliable a test for marijuana would have been two days later – would it have shown when the substance was used in relation to the accident? Counsel answered that if the plaintiff had consented, he certainly would have been free to argue that the testing wasn’t sufficiently persuasive to support a criminal charge, and indeed, perhaps it wouldn’t have been. But the applicable standard couldn’t be that unless the testing could convict the driver, the condition was invalid. The Chief Justice noted that the Vehicle Code limited testing to twelve hours even when a driver flees the scene, and asked why this should be different. Counsel answered that that provision is criminal in nature – refusal to allow a search is a Class 2 felony. Here, on the other hand, refusal is a regulatory matter, merely triggering loss of the driver’s license. Justice Thomas asked how the Court could separate the various provisions, since the consequences of refusing a search for all circumstances are set forth in the same statute. Did it even matter if the proposed testing violates the Fourth Amendment? Counsel answered that the State isn’t arguing that the Fourth Amendment is entirely irrelevant, but the issue is whether the State can attempt to incentivize conduct it can’t compel.
Counsel for the plaintiff followed. Counsel argued that the implied consent statutory scheme was constitutional if applied reasonably. However, there are certain circumstances when testing cannot be imposed. Counsel argued that the State had had two days to obtain a warrant for the chemical testing. The legislature can impose mandatory testing at an accident scene because of diminished expectations. According to counsel, the State’s analysis of unconditional conditions was expedient, using the doctrine as a sword to validate warrantless evidence gathering. The State avoided the issue of why the driver would have a reduced expectation of privacy two days after the accident, or why the test was supposedly minimally invasive. Counsel argued that the State had no need for the evidence at that point beyond the needs of ordinary law enforcement. Given the State’s repeated claim that reasonable cause existed for the search, why had the State not obtained a warrant? Counsel argued that no case had ever applied the unconstitutional conditions doctrine to ordinary evidence gathering. The statute couldn’t possibly authorize what amounted to a warrantless search for as long as it’s possible to gather evidence, according to counsel. Counsel argued that his client was affirmatively found not impaired at the scene of the accident, so there was no relationship between the search two days later and the State’s interest in fighting impaired driving. If the statute was effective under these circumstances, counsel concluded, then the State has an unlimited amount of time available for evidence gathering without a warrant.
Counsel for the State concluded, arguing that the plaintiff was continuing to conflate Fourth Amendment analysis and the unconstitutional conditions doctrine. The problem with the plaintiff’s argument, counsel argued, was that if the warrantless search doctrine applied on facts like this, most consent searches are invalid. The Supreme Court has said on numerous occasions, according to counsel, that government may condition benefits on allowing warrantless searches it couldn’t compel. Justice Kilbride asked whether the police could meaningfully be said to have a justified suspicion two days later when the officers at the scene said the plaintiff was not impaired. Counsel responded that after the accident, the police found marijuana in the car. So it wasn’t a suspicionless search. The question for a conditions analysis was whether the search was disproportionately intrusive, and the threat to plaintiff of losing his license was so onerous that it overbore his will. Chief Justice Garman asked whether, if the Court accepted the State’s argument, there was any limit on when a request for chemical testing could be made. Counsel said yes, but the standard would depend on the facts of a particular case. The standard would be different if alcohol rather than marijuana had been found in the car, counsel argued. Because the chemical testing would be likely to turn up evidence, counsel concluded, the testing was a proportional response, in view of the government’s compelling interest.
We expect McElwain to be decided in three to four months.