Mimesis Law
4 July 2020

Asserting Your Rights Should Not Be A Crime

Dec. 15, 2015 (Mimesis Law) — The Supreme Court of the United States has granted cert on an important question. Can the government punish you for asserting constitutional rights?

North Dakota and Minnesota agree. The answer is yes.

Like most states, North Dakota and Minnesota force everyone who wants to drive a car to agree to submit to chemical tests from law enforcement without a warrant. If you break that promise, you can be charged with a crime.

Such laws were pretty uncontroversial for a long time because the United States Supreme Court had suggested[1] that the government almost always had a right to chemically test you, incident to arrest, to avoid the risk that your liver would destroy the evidence.

Since, under that interpretation, you had no right to refuse the test, it was fine for the government to punish you for not playing along.

But in 2013, the Supreme Court changed the game, holding that there was no blanket rule that officers could search your blood incident to arrest without a warrant. Instead, officers need a warrant unless there is not enough time for them to obtain one before the evidence disappears.

Under that ruling, you could face a situation where the officer needed a warrant to search you, you asserted your right to refuse, and you were then punished.

All three petitioners in these cases were convicted for failing to allow the government to perform warrantless searches, without regard for whether those searches were constitutional.

All three argued that such a rule violated something known as the “unconstitutional conditions doctrine.” Under the doctrine, the government can’t use the Bill of Rights as the starting point of a contractual negotiation.

If this were otherwise, the State would be permitted to destroy a right created and protected by the Federal Constitution under the guise of exercising a privilege belonging to the State…

So, for instance, your state can’t create a nifty new privilege, like a tax exemption, and then tell people they only get access to it if they swear loyalty to the government.

Similarly, the United State Supreme Court has been pretty clear that you can’t punish someone for refusing to let police search his home without a warrant.

[W]e therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection.

This is an insanely important rule. It is, of course, not strictly enforced (every single plea negotiation is an exchange of constitutional rights for a government benefit).

But it serves to create a system where the government can’t take things we used to enjoy freely, like access to roads, utilities, or the internet, and then bargain them back to use in exchange for our constitutional rights.

There’s a lot at stake here.

If Minnesota and North Dakota win, it will be on the same basis that so many of our constitutional rights have been lost. Public safety demands it:

Securing effective chemical tests to determine whether drivers suspected of being under the influence are in fact driving while impaired is reasonably related to the government’s interest in keeping impaired drivers off the road. Encouraging drivers to submit to such tests, through criminalizing their refusal, furthers that interest. In fact, one study concludes that alcohol concentration test refusals compromise the enforcement of drunk-driving laws.

The United State Supreme Court has found these arguments plenty powerful before. It held that the police can stop every single person traveling along a road to see if they’ve been drinking, even if only half a percent of those drivers were eventually suspected of drunk driving.

In a decision that Scalia called a “freedom-destroying cocktail,” it held that a jilted lover can call 911 anonymously and get you pulled over, even if you’re driving perfectly, on the off chance that police would come back and arrest the caller.

As exciting as it would be to see the Supreme Court step in and decriminalize knowing the Constitution, there is ample room for it to make the law considerably worse on what seems like an easy question.

A victory of the states here would set a terrible precedent. Few of the things that Americans enjoy on a daily basis are constitutionally guaranteed. And once governments learn they can haggle with us for the remainder, we will quickly learn that freedom itself has become a privilege.

[1] Schmerber doesn’t really say this. But courts seem to think it did, and that was good enough to pass a bunch of implied consent laws all over the country.

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