423978073_da502e1517_zSection 11-501.6 of the Illinois Vehicle Code provides that when a driver is arrested for a traffic violation related to a fatality or serious personal injury, he or she automatically consents to chemical testing for alcohol and drugs. The statute provides that if the driver refuses to submit to the test, his or her license is automatically suspended.

In McElwain v. The Office of the Illinois Secretary of State, a unanimous Illinois Supreme Court held that Section 11-501.6 could not constitutionally be applied to a driver who was first asked to submit to testing two days after the accident. Our detailed summary of the underlying facts and lower court opinions and report on the oral argument is here.

McElwain began with a 2012 accident between a car and a motorcycle. The driver of the motorcycle was seriously injured, and the passenger died. The plaintiff driver was neither issued a ticket nor asked to take any chemical tests. During their investigation, the police discovered rolling papers and a small plastic bag containing what appeared to be marijuana in the plaintiff’s car, but the officers present at the scene didn’t think the plaintiff appeared to be under the influence.

Two days later, the plaintiff was asked to report to the police station, where he was questioned further about his use of marijuana. After extensive questioning, the plaintiff was issued a ticket for failing to yield in a turn and asked to take a chemical test. The plaintiff refused, and the Secretary of State subsequently suspended his license for three years pursuant to Section 501.6.

The plaintiff petitioned to rescind the suspension, but an Administrative Law Judge upheld it. Once the decision became final, the plaintiff filed a complaint seeking administrative review in the circuit court, contending that the suspension of his license for refusing a test two days after the accident was an unconstitutional search. The Circuit Court agreed and held that the statute could not constitutionally be applied to plaintiff.

In an opinion by Justice Thomas, the Supreme Court affirmed. The Court began by addressing the plaintiff’s claim that the statute had to be read as including an implied time limit on requests for testing. The Court held that notwithstanding the doctrine of constitutional avoidance, it wasn’t possible to preserve the statute, since it was clear that when the legislature intended for a statute to contain a time limitation, it expressly said so. Besides, the legislature has twice refused to enact proposed legislation which would have added an express time limit to the statute.

The Court cited to its earlier decision in King v. Ryan, in which the Court had held facially unconstitutional an earlier version of Section 501.6 which had provided for automatic driver consent to chemical testing whenever the driver was apparently at fault in an accident resulting in personal injuries. There, the Court had held that although the State certainly had a compelling interest in fighting impaired driving, Section 501.6 was at least partly aimed at gathering evidence for use in criminal proceedings, and thus didn’t fall under the special needs exception which authorizes many searches conducted at crime scenes. Four years later in Fink v. Ryan, the Court had upheld the current version of the statute in another facial challenge, but only after the legislature had amended the statute to (1) delete a requirement that testing be premised upon a preliminary finding of fault; (2) delete a provision that test results could be used in civil and criminal proceedings; (3) add a requirement that testing be limited to drivers issued a traffic citation; and (4) limit the types of personal injury triggering the statute. Where all these circumstances were present, the drivers had a reduced expectation of privacy sufficient to preserve the statute.

But Fink, the Court found, was clearly based on the assumption that chemical testing would be done shortly after the accident. The driver’s reduced expectation of privacy was based not merely on his or her status as a driver, but on the legal duty to remain at the scene of the accident. Although the “special need” justifying the statute was the state’s interest in keeping impaired drivers off the roads, a test administered two days after the accident had relatively little probative value with respect to that interest.

For the first time at the Supreme Court, the State tried to preserve the statute by arguing that it should be analyzed under the courts’ “unconstitutional conditions” doctrine – the notion that one cannot be compelled to surrender a constitutional right in exchange for a discretionary benefit with little or no relation to that right. The State argued that it could condition the receipt of a driver’s license on automatic consent to the chemical test, but the Court pointed out that that argument rested, once again, on the State’s interest in fighting impaired driving. The nexus between the condition and that interest was weak-to-nonexistent when testing happened two days after the accident, so the statute could not survive.

The Court concluded by declining to create a bright-line test for how quickly chemical testing must occur in order to pass constitutional muster under the statute. But wherever that line was, the Court commented, two days was simply too long.

Image courtesy of Flickr by Chris Harrison (no changes).