Jeff Sheridan represented the Appellant (Defendant) in this oral argument. He argued first.
Mr. Sheridan requested that the Court find that the criminal test refusal statute be held unconstitutional. First, Mr. Sheridan addressed whether his argument should be treated as an as-applied or facial challenge. Certain judges felt that the statute could be constitutional in certain situations as thus believed that it should be treated as an as-applied challenge. For example, if the cops did have a valid warrant and the defendant refused testing, then the statute could be held valid. This question was left unanswered.
Mr. Sheridan next addressed the possibility that exceptions to the warrant requirement would exist in certain situations. Mr. Sheridan addressed this by saying that while it is a possibility that exceptions could exist in a case-by-case basis, the determination as to whether an officer can administer a test should be made by a judge to avoid erroneous reliance on warrant exceptions which may or may not exist.
Mr. Sheridan boiled his argument down to two questions. First, does a person have a constitutional right to withhold consent to a warrantless search. Second, assuming the answer is yes to the first question, can the State make it a crime to exercise this constitutional right. Mr. Sheridan stated that the answer is yes to each question and thus the implied consent statute must be held to be unconstitutional.
There was much discussion over whether or not the search incident to arrest exception would apply in every case to justify the warrantless searches performed under the implied consent law. Mr. Sheridan stated that the search incident to arrest would not apply because in order to perform a valid search incident to arrest one of two things needs to occur. Specifically, the officers need to perform the search for officer safety or in order to prevent the destruction of evidence. Mr. Sheridan stated that while blood alcohol content does dissipate over time, the person does not have the physical control to destroy it. Further, this dissipation of alcohol is very similar to the one factor exigency which was struck down in McNeely.Ultimately, the judges asked many questions which forced Mr. Sheridan to defend why this exception should not be applied. It seems that if the court upholds the implied consent law, the search incident to arrest exception will play a role in that decision.
Stay tuned for more Bernard analysis!