Excuse me, sir, do you have any implied consent?

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Updated Sep 10, 2017

Unless you live under a rock, you’ve seen or heard about the nurse in Utah who refused to do a blood draw on an unconscious patient and got detained for it.

This was a big deal for a lot of reasons. In the trucking community, it became a really big deal because the patient the nurse refused to do the draw on happened to be a trucker.

A four-wheeler, who was evading the Utah State Police at the time of impact, involved the trucker in a fiery crash. An air ambulance took the truck driver to the University of Utah. The driver of the four-wheeler, who reportedly caused the crash, died at the scene. What followed for the trucker was a medically induced coma. For those unfamiliar, that is standard procedure for a critical burn victim.

It was evident from dashcam video and reports of officers on the scene that the trucker was not at fault.

However, we’re all familiar with the little green book, and the little green book says post-accident testing is required for alcohol within eight hours of a crash. Controlled substance testing must be done within 32 hours of the accident. This is all regardless of fault. If there is a loss of human life, a test is conducted. No questions asked.

Well, sort of.

“Pardon me, do you realize implied consent pertains to all driver’s licenses?”“Pardon me, do you realize implied consent pertains to all driver’s licenses?”

The little green book also says if these tests aren’t performed within the allotted amount of time, the employer must prepare and maintain a report to be kept on file and submitted to the FMCSA upon request. (I’m pretty sure a medically induced coma might be solid grounds for delaying a test.)

It further states that “consent is implied by driving a commercial motor vehicle.”

Now, a lot of people got all nutty and started saying the cop had every right to go in there and demand a blood sample be drawn. They say this simply because the man involved in the crash held a CDL, no warrant or jurisdictional hold was necessary.

Apparently, they think holding a CDL implies that you’ve given up some sort of Fourth Amendment right to illegal search and seizure.

That is not the case at all.

The implied consent rule in 49 Code of Federal Regulation 383.72 says the CDL holder has consented to such testing as required by the state or jurisdiction in the enforcement of 383.51 (crash/incident rules regs).

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Guess what? Every single state has an implied consent rule that is not CDL-specific. If you hold a driver’s license in any of the United States of America, you have agreed to some form of implied consent. It is not a trucking-specific thing.

Even the FMCSA rule defers to state law regarding it. And every single state differs in their interpretation and enforcement of it.

In 2016, the U.S. Supreme Court ruled it was unconstitutional to take blood from an unconscious person.

Justice Samuel A. Alito wrote:

“We conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving… The impact of breath tests on privacy is slight, and the need for [blood-alcohol concentration] testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availa­bility of the less invasive alternative to a breath test.

In light of that ruling, many states have amended their implied consent rules. Some of them are oddly specific, especially regarding medical personnel and their ability to maintain patient privacy rights. (I know because I spent the entire day looking them up and reading them.)

No one can say for sure why the detective in Utah thought it was OK to demand a sample with no viable right to do so. It wasn’t because the victim was a trucker (he was also on an off-duty police officer).

The detective never once referenced a need to test for an explicit purpose. Not once.

The police officer didn’t articulate his need. He never admitted that he must have a warrant, the victim gave consent or that (the perceived victim) was under arrest. For you company drivers who signed away those three rights (warrant, arrest and cannot be unconscious) … the officer wasn’t acting in the interest of the company the trucker drove for.

In the end, no “right” mattered that a CDL was in play.

Bottom line is, as far as implied consent goes, you didn’t give up any more rights to get a CDL than you did to get a regular driver’s license. The FMCSA holds you accountable for remaining available for testing, regardless of fault, if there is loss of life, bodily injury or disabling damage to a motor vehicle that requires a tow truck – that’s the difference.

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