Feb 13

McNeely / Brooks Update

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Two cases have recently rocked the criminal law world. See here for information about McNeely and Brooks. For an example of these cases, see State v. JMM.

The result of Brooks is that the Implied Consent Advisory, which states “refusal to take the test is a crime,” does not in and of itself invalidate consent. Though this took some punch out of our arguments, it has opened the door wide to raise Fourth Amendment challenges. This means that each case must be analyzed on an individual basis. Unfortunately, many courts are outright denying these motions. It is important to remind the courts that this is no different than any other search and seizure case. After all, it would be ridiculous to allow a law that criminalizes the right to say no to police who want to search your house. We are moving forward. Many cases are headed toward the court of appeals to obtain more guidance on how to handle these situations. The fight is far from over and we keep pushing on.