Why Use Phrases Like "Implied Consent"?

by Sherry F. Colb

In my Verdict column for this week, I discussed the case of Mitchell v. Wisconsin, on which the U.S. Supreme Court recently granted review. The case asks whether a state can suspend the warrant requirement for blood samples that police wish to take from unconscious DUI suspects. The Wisconsin statute at issue provides that drivers give implied consent to such warrantless blood tests when they drive in the state and their driving gives rise to probable cause to believe they are intoxicated. Furthermore, if they become unconscious when police wish to take blood, they forfeit their right to revoke their implied consent, because they cannot revoke anything while unconscious. The Supreme Court will decide whether this makes sense as a matter of Fourth Amendment doctrine.

In this post, I want to focus on the words "implied consent" and ask why anyone chooses to deploy such language. First, let us think of legitimate uses for the phrase. You go to a hair salon and give the receptionist your name. The receptionist offers you coffee and says that "Kaylie" will be working with you today. You head over to Kaylie's station when it is your turn and sit down on the seat. "So what are we doing today?" she might ask, simultaneously running her fingers through your hair from different angles. She never asked whether she could run her fingers through your hair, and you never told her she could. Indeed, she may not have even gestured or otherwise indicated her intention to touch your hair, and you may not have signaled her in any way. If you claimed that she had committed a battery, however, no reasonable person would accept the claim. By sitting in the chair at Kaylie's station, you impliedly consented to her running her fingers through her hair. If you prefer that no one touch your hair, you probably need to steer clear of the haircut seats at the salon.

What makes the above example a case of implied consent? Well, we do not have express consent, because no one said "I hereby consent to your running your fingers through my hair," and no one did anything specific to communicate the same thing. Except for sitting in Kaylie's work station. Kaylie could reasonably understand that action as authorizing her to touch your hair. She may, on occasion, be mistaken about your feelings. You may have thought you would talk with her and hear what sort of haircut she might give you before she would take the liberty of running her fingers through your hair.  But in fact, the circumstances did rationally release her from the ordinary obligation to keep her hands to herself.

In the Mitchell case, things are quite different. Driving in Wisconsin does not itself represent consent to a warrantless blood test, and driving in a drunken fashion in Wisconsin does not either. Indeed, it is only when police have probable cause to believe that you are driving while under the influence in Wisconsin that Wisconsin law enforcement officers are in a position to obtain a warrant to conduct a blood test in the first place. It seems odd to suggest that acting in a way that gives rise to a successful warrant application also amounts to consent to relieve the police of the obligation to get a warrant at all.

Using the phrase "implied consent" to describe a case in which no one would rationally conclude that someone has consented serves a particularly invidious purpose. It aims not only to authorize the party on the receiving end of the "implied consent" to do something that we would ordinarily prohibit in the absence of consent. The state could have accomplished that purpose simply by saying "warrantless blood tests are permissible in DUI cases." What using the phrase does, in addition, is to get people thinking that someone has consented when she has not. People may ultimately believe that the warrantless blood test is actually justified because the suspect "impliedly" consented. Just as a consensual search is a reasonable search for Fourth Amendment purposes, then, we might come to imagine that the warrantless blood test is also a reasonable search.

We find this sort of language slippage in other areas as well. Under the marital rape exemption, for example, the law would typically state that a man "cannot" rape his lawfully wedded wife, even though the effect of the law was actually the opposite: a man could lawfully rape his wife with impunity. By phrasing things in terms of husbands being unable to rape their wives, however, the law both authorized marital rape and offered a pretense that such marital violence is simply impossible and therefore cannot happen, which sounds reassuring and obscures the barbarity of the legal principle.

Similarly, the Animal Welfare Act (which in fact tolerates a shocking amount of animal cruelty) provides a definition of the word "animal" that mirrors the invidious quality of "implied consent." The law excludes, among other research subjects, mice and rats. This exclusion means that the law applies to only about 10% of the animals on whom scientists perform experiments. In addition to narrowing the scope of what is already a substantively weak law, however, defining a rat or a mouse as not qualifying as an animal at all does more. It allows people to say and to eventually believe that the law provides its minimal protection to all animals.

I am sure that you can think of other examples, situations in which people use words that derive their power from what they have always meant, to extend to things to which they have never applied. Such usage, though technically "truthful"--because the user defines the common word in a new way--is in fact quite dishonest. We all have parts of our brains dedicated to words and their meanings, and the emotional content of the words will likely remain in place, even after the law or particular people or groups expand the meaning of the words beyond all recognition or contract it to an equally distorting extent. Just imagine what would happen if a law or group started using the word "woman" to mean "an overly emotional human creature with lesser intelligence than her male counterparts," offering the caveat that "we're using the word in this way only for purposes of this statute or other purpose." In reality, using the word in this way would alter how people feel and think about women. Words have consequences, and words like "consent," "rape," and "animal" should factually mean in the law more or less what they mean in society. Otherwise, it becomes far too easy to lose our bearings.