by Sherry F. Colb
In my column for this week, I discuss the case of Birchfield v. North Dakota. This case raises the following question: Is it permissible under the Fourth Amendment for a state law to provide, absent a search warrant, for criminally punishing drivers arrested for drunk driving who refuse to give their permission for a blood/alcohol test (which may take the form of a blood test, a urine test, or a breathalyzer). In my column, I discuss whether there is a difference between saying that police may not search without a warrant and saying that the state may not criminally punish a suspect for refusing to consent to a search without a warrant. I also discuss the question of whether a breathalyzer is sufficiently different from a blood test so as to warrant a less protective Fourth Amendment approach (i.e., permission to search without a warrant). I have my own answers to these questions (which I elaborate in the column), but here I want to talk about a different feature of the issue that confronts the court: what does it mean to ask for consent but to penalize non-consent, whether criminally or otherwise?
Ordinarily, when we speak of consent, we mean to say that someone has an option of agreeing to something or of not agreeing to something and that if the choice is not to agree, then the party requesting consent must go away and accept the denial of consent. In the context of consent to relinquish constitutional rights, however, that is not often what we mean. We do have the occasional right in which there must be no burden on its exercise (and hence no penalty at all for the failure to consent to its relinquishment). The right not to testify at one's own criminal trial is such a right. If a person chooses not to take the witness stand at his trial, not only may he not be penalized directly for that choice, but he has the affirmative right to have the judge directly order the jury not to draw any negative inferences from the failure of the defendant to testify in his own case (regardless of how reasonable such an inference might be). Yet outside of the defendant's silence at his own criminal trial, the Supreme Court has permitted the impeaching use of a criminal suspect's silence in the face of accusations (e.g., when the suspect is not in custody but fails to answer an officer's question). And in the context of refusals to submit to blood/alcohol tests, the Court has approved of the consequent revocation of licenses and the use of such refusals as suggesting that the outcome of the test might not have been favorable.
The question is why? Why is it that a person may be said to enjoy a constitutional right and yet be subject to "consequences" visited by the government for the exercise of that right? I would suggest here that it may actually be impossible to fully protect an individual's constitutional right not only from its forcible relinquishment but also from any negative consequences from its assertion. And to support this claim, I would circle back to the right to refuse to take the witness stand at one's own criminal trial. In this singular example, in theory, the suspect enjoys the right to be silent and freedom from any consequences that might follow from the exercise of that right. Yet the reality is otherwise. If a criminal defendant fails to testify, then the jury, a body whose job it is to draw rational inferences from the evidence that it considers, will likely take that failure into account in determining whether the defendant is guilty or innocent.
This is so true, in fact, that when I teach my students evidence, I urge them to think carefully about whether to ask for the special instruction (telling jurors not to draw negative inferences from the defendant's failure to testify), much as they should think carefully about whether to ask for other instructions that demand counterintuitive or counter-rational thought processes from jurors whose job is to think rationally (rather than to affirm extrinsic policies such as the right to avoid compelled self-incrimination). Asserting one's rights will also generally carry some cost for oneself--this is plainly the case for civil rights plaintiffs who decide to sue their employers or the government or some other entity for violating their rights. Retaliation may be legally impermissible, but other employers or actors can watch what a plaintiff did and decide on that basis not to hire or not to engage in other ways with that plaintiff, without there being any smoking gun that could connect the adverse decision with the exercise of rights by the plaintiff.
There are limits, of course. If the consequence of exercising one's right to refuse consent is that the act is forced upon the refuser, then the right to refuse consent becomes meaningless. And arguably, if the exercise of one's right to refuse consent leads to the imposition of a criminal penalty for that refusal, then there too the right to refuse consent becomes meaningless. But it is useful to remember that the exercise of one's rights--when there is an opponent who actively wishes for one to relinquish some number of those rights--is virtually never cost-free. In thinking about the case before the Court, then, it may be best to identify the correct line between permissible and impermissible consequences attaching to the assertion of one's Fourth Amendment rights rather than to honor the pretense that it could realistically be the case that one might enjoy a thoroughly unencumbered right to refuse to give consent to a police officer who is asking for that consent. Like other rights, the assertion of this one is understood to come with costs.