doctrine of unconstitutional conditions and recognizes the basic type kata with respect to individually held constitutional rights on the one hand the government is not permitted to tie to a valuable government benefit an onerous condition that is designed to compel people to surrender their constitutional protections on the other hand the government is allowed to offer non coercive incentives that are designed to encourage people to voluntarily waive one of their constitutional rights this case is about that they caught it and it is not about the issue the circuit court focused on its decision the fundamental question presented here i whether the suspension of the plaintiff driver's license in this case based upon an illinois statute that makes drivers licenses contingent upon an individual's agreement to allow a chemical test to occur if they are involved in a serious or as in this case it fatal accident and arrested for in moving violation related to that accident whether that condition operates as in onerous condition or in permissible incentive the question presented there is not the one focused on by the circuit court which was whether or not if a search had been conducted that was involuntary and warrantless whether the special needs exception to the work requirement of the fourth amendment would have allowed go forward that is critical perhaps the most critical distinction to be drawn in this case and the reason it's so important is that the special needs exception to the warrant requirement in the doctrine of unconstitutional conditions are coextensive the special needs exception is fundamentally a rule of the criminal and this doctrine of unconstitutional conditions is almost exclusively i think if not exclusively it will of civil war the two tests differ in fundamental respects and the two and so i want to be as clear as possible why this case is not special needs case as the circuit court found and i think that really comes from two different sources first if you look at the way the statute here operates i think what you'll see immediately is that it doesn't authorize involuntary warrantless searches indeed the plaintiff here was not subjected to an involuntary warrant was served the fourth amendment is not violated i think pathetically searches that never took place the fourth amendment is violated by a search that is fundamentally reasonable what the statute over your consent to search but it's back consequence that it brings this case within the ambit of the doctrine of unconstitutional conditions and so i think that and that really brings me to the second point here which is that the u s supreme court precedent in this area is very clear but the test for violations of specific constitutional rights is not the same test that applies to unconstitutional conditions cases if you take reagan against washington taxation with representation of washington for the court they're considered it's a law that congress had passed giving a special tax exemption to not for profits that promised that they would not exercise their  first amendment right to lobby the government however not for profits they didn't choose to lobby the government weren't eligible for those tax vests and the court i think proceeded from the premise that congress could not directly ban not for breast against soul of help that congress could condition up participation in by health care providers and a government subsidized family planning program on their promise not to identify abortion as a permissi means of family planning terrorist versus mccray said that you can condition participation in the medicaid program on the promise that you will not have an abortion which would be a protected fourteenth amendment conduct and most recently in the american library association case the supreme court upheld a condition that was placed upon a program that subsidized internet access for public libraries on the promise that these libraries would install internet blocking software that would screen out first amendment speak so if the plaintiff is right and the implied consent statute that is it issue here can only be applied where the fourth amendment would allow of warrantless involuntary search and all of those cases have to be wrongly decided because each of those cases stands for the proposition that the government can in some circumstances can some circumstances who's in which really to be honest it wasn't really discussed in the brief so let me read these three portions no reasonable driver expects to leave the scene of a serious accident moments after its occurrence with law enforcement personnel investigating the accident and other personnel attending in the participants physical conditions the driver expects less privacy any driver subject to chemical testing under the amended statute has a statutory duty to remain at the scene of the accident render aid to injured purdy's in exchange basic information with those involved given that amount of time required to attend to law enforcement and emergency medical needs the addition of a chemical test as minimally intrusive in the last phrase the intrusion upon an arrested driver is minimal or nonexistent depending upon the length of time required by law enforcement personnel to process the accident scene an emergency medical personnel to attend the injured person don't these passages clearly show that this court upheld the statute only because of the diminished expectation of privacy the drivers have  well justice thomas let me begin with the basic observation which ties back to what the point i was just trying to make which is that the court there was applying the test for the special needs exception to the war requirement under the fourth and that it was not applying the unconstitutional conditions analysis that i that this case really raises and the reason it did is if you go and look at the comes to citizen from the united states supreme court from two terms ago what it said is that the question of whether threshold step the question of whether the government was trying to incentivize conduct equipment compel it found there that the government wasn't trying to do that it was incentivizing kind of equip compound so it had no need to reach the unconstitutional conditions analysis so i don't think think here really provides us much guidance as to the unconstitutional conditions question now as to the statute itself i think the lack of a time limit that is that appears on the face of the  to me that that really indicates that what the general simply wanted here is for that statute to reach to its constitutional maximum as opposed to trying to didn't read in some other time limit that would go with that would somehow come short of  the time limit under that would be provide were allowed under the constitution so when you're certainly right the question of whether we could perform an involuntary warrantless search against someone's will would have you know would not have justified the search under these conditions i don't think there's any doubt now under missouri against mcnealy from the supreme court several terms ago that we couldn't do that but that's not the test the two the test between the fourth amendment and the unconstitutional conditions doctrine are not one in the same and i think if you look at the dolan case which is still the leading authority on what the test is for cases arising under the doctrine of unconstitutional conditions you'll see the back test differs in fundamental respects the the first is that there is an essential nexus between the condition of pows any legitimate government interest and then the second question is whether the burden on the individual's constitutional rights is roughly proportional to the importance of the governmental interest now as to the first point i don't think there's any dispute in this case that we meet that standard the the importance of the government interest in the context of implied consent laws is well recogni this court and the united states supreme court have both said it is not only a legitimate government to protect the public from intoxicated rights it is in fact a compelling state interest if you go if you're applying strict scrutiny as far as the nexus i think the importance of what the supreme court is getting at when it says there needs to be a nexus here is that the nature of the the government's ability to limit the exercise of a constitutional right is itself limited by the nature of the governmental interest and so for example i don't think we i can tell you we would can see that if the government tried to tie to the availability of a driver's license a condition that you not criticize the government that wouldn't pass cost constitutional muster because government criticism impairs no legitimate government interest that's not the case here the reason that illinois insists on a partial waiver of fourth amendment protection when you use its roadways is that is trying to eliminate as many barriers as possible to protecting the public from intoxicated drivers and the hazards that they present to the public now what exactly is the nexus between important to bear in mind that what we're measuring is the degree of intrusion under the fourth amendment versus the importance of the governmental interest and again we have a compelling interest here for good reason on the one side of the letter the reason it's so compelling is that if you look like clockwork for the last several years illinois has had nearly a thousand fake tallies on the road as a result of car accidents every year if a large percentage of them are the result of intoxicated driving if you measure it in purely economic terms it costs tens of billions of dollars a year nationwide as a result of intoxicated driving on the other side of the equation we have to look at the specific facts of this case and determine how great an search would actually be from a fourth amendment perspective in our view is that it would be at best a modest impingement into the fourth amendment even though it is remote in time and i think the reason for that is to fall first if you look at the nature of what went on here this was in the context of an arrest and there is a long standing body of case law that says when you're under arrest you have a diminished expectation of privacy that arrest if you look at it in context i would think would even further diminish the expectation of privacy that was that was an issue here this occurred at a police station following an interview during which an individual confessed to having used marijuana in the past and after being confronted with a baggie that that included trace amounts of cannabis i know the some factual dispute as to whether or not that was actually tested and shown to be cannabis we think the administrative agency found that there was marijuana in the bag and there was no evidence in the record to show that was against the manifest way but he was confronted with this bag and told and then asked to perform a chemical test two days later where there's really no doubt that if if he had been on marijuana at the time of the them i haven't used it since the accident i actually saw actually so i had used it since before now if the evidence is actually obtained he consents to the search he would still certainly have the ability at a criminal trial to argue that this evidence wasn't persuasive enough to a jury to support a conviction beyond a reasonable doubt indeed i likely agree that if this was the only piece of evidence at the state's disposal to try and convict him of driving under the influence it probably wouldn't meet the beyond a reasonable doubt standard but i don't think it's enough for him to say i don't think the test here can be well you couldn't convict me of it they're for the to the condition is improperly applied to that that's a nice that seems to me to be too onerous a standard for the application of what is a straightforward requirement that every driver on the road is familiar with indeed certainly the plaintiff was this was the second time that he had refused to templeton's in the course of being pulled over so it's not as though this is really just an implied consent statute that he was completely unaware of this is a person who is very much aware of what would of what the requirements what the rule is here and so i again i don't think you can simply say that the test was disproportionate to the government's interest based upon the fact that this evidence alone wouldn't allow for a conviction that the vehicle code provides does not provide that if you free the scene of an accident  there's a twelve hour limit on that and the requesting the blood test your breath test why isn't the why why should there be a difference if somebody  scene why should they have a more over limited window then somebody that was cooperate even was released let's think just to keep chief justice carmen because there's a fundamental difference between that statute in the statute that's at issue here and it has to do with the consequences of not allowing the search to go for under that statute the refusal to allow the search is a class or class two felony it is what is in this body of law referred to as your brother  and those statutes have faced much greater constitutional scrutiny because the individual loses their ordinary right under a consent search paradigm to withdraw their consent here under this statute the consequences the loss of your driver's license is a regulatory consequence and the question fundamentally is whether or not this regulatory consequence is so onerous that it essentially or that its impact on a constitutional white right essentially wharfs the nature of the governmental interest earlier which is the test which is you know you examine whether or not the government is trying to incentivize conduct it can't compel if the answer is yes then you go into the constitutional conditions analysis so i think the fourth amendment says play there the second point is in the is at the factor that i think we're discussing from dola which is the rough proportionality part of the tests and the question there is the degree of the fourth amendment impinge and then in comparison to the in comparison to the government's interest we are taking the position that the fourth amendment has nothing to say about this i think we certainly can see that it does the only thing we're say is that it is not the entirety of the analysis and that is the critical distinction that we think needs to be drawn this case and the fundamental reason why the circuit court's analysis here is fundamentally flawed because the circuit court treated the fourth amendment and the unconstitutional conditions doctrine as though they are  extensive and i think as we've established regarding reagan ross harris american library association and koons five u s supreme court cases that stand nearly forty years of precedent that's not correct so it seems to me that you have to identify if there is some sort of gap where the government is allowed to incentivise conduct it cannot compel otherwise those cases simply do not make any sense ultimately i think it's important to bear in mind that this is all this is a statute that is designed to protect public safety i don't think we dispute for a moment that if what had been discovered in the glove compartment of the plane is vehicle here was a bottle of whiskey as opposed to a bag with marijuana where his body would have metabolized to metabolize material by the time that he was under arrest that we would not this would not be a reasonable condition it would not be related to the government's interest however  marijuana here we know the test would reveal something that would be pertinent to a criminal charge and as a result we think it is a reasonable condition to impose upon his driver's license that you see to a chemical that statute six thirty five five eleven by one point six this statute this case statutory scheme is constitutional if it's applied reasonably reasonable notice in the fourth amendment context obviously doesn't mean that an illinois driver always has a constitutional right to refuse the chemical test of battle in the woods without fear of losing his or her license but there are clearly some circumstances where the scheme cannot be impose for refusing a search of his bodily fluids under circumstances that were completely divorced from any exigency and he's actually any diminished expectation of privacy and under circumstances where the state had two days growing up basically in active investigation to take a warrant for the test but inexplicably failed to solve this court has told us that is all it is quote while driving on the road that one reasonably expects less privacy and the court is explain why this is especially true at the scene of a serious or fatal accident law enforcement personnel are actively investigating a fatal or serious accident scene other personnel are attending to the people who may be injured in their physical conditions there's a duty a statutory duty to remain at the scene and the court said quote thus by the very nature of the circumstances in which drivers find themselves the legislature has imposed testing only when the driver's expectation of privacy has been diminished and the test is minimally truces your honour's here the state imposed testing meaning that that he must submit to the test or have his license suspended it is a unitary statutory scheme it was imposed and because the state imposed testing and mr macklin refused his license was suspended for three years now the secretary understandably wants to avoid certain facts and legal issues in this case and its proffered interpretation of the doctrine of unconstitutional conditions is an expedient albeit insufficient analysis that allows us to do so in short the secretary seeks to use the unconstitutional conditions doctrine as a sword to validate warrant warrantless evidence gathering overturned of the doctrine but here are the questions that are left unanswered by the secretary which he contends don't matter in this case but upon which we contend this case hi highly invasive search minimally intrusive nor does the secretary offer any other need beyond the needs of ordinary law enforcement that would justify the requesting warrantless blood draw and some the secretary  chosen to opt out of all constitutional analysis in favor of what we consider to be a misapplication of the doctrine of one constitution the other fundamental question left unanswered is why especially in light of the secretary's repeated claims that probable cause existed or at least reasonable suspicion existed as of the date of the accident in the form of a bag with rolling papers and a resin residue that appeared although it was never tested to be marijuana why no warrant was obtained it certainly wasn't for lack of time one day after the incident one day after the accident a single witness was interviewed admittedly this witness added no new avenues for investigation to urgently take up the officer's time in light of the u s supreme court's ruling in missouri versus big healey which the secretary of state's reroute relies on in light of the rowing there that even in light of the state's compelling interest in highway safety there is no per se exigency justifying and that if the circumstances allow the general rule should apply police should get a warrant there is simply no basis to justify the imposition of statutory scheme secretary apparently wants two different sets of standards for a fluids even if the demand is not justified by any special needs but is simply a demand made from mere evidence gathering our position is that this is an unreasonable extension of my sense in which causes it to create an unconstitutional condition in this case now the secretary want to take us away from all of this war and constitutional analysis because they say no chemical test no blood draw was ever ever actually done years secretary says this is not an unconstitutional condition it's impact on a constitutional right is germ main to the government's legitimate objectives and that's a quote from their brief reply brief ten opening  i have to note here because mr burroughs said repeatedly that the circuit court did not focus on the issue of unconstitutional conditions that's likely because the secretary did not raise this argument at all below that's why the judge of the statutory scheme so this should remove any any lingering doubt that the secretary's argument is based purely on the text of the statute secretary takes us to task for reading things into the statute reading limitations evidence gathering it's because it is we do not believe there is anything in any case law and the secretary has pointed to none construing this unconstitutional conditions doct the unconstitutional conditions doctrine as another weapon in the state's arsenal to collect evidence of crime without a warrant has no legitimate basis as judge posner pointed out burgess versus lowery the doctrine of doctrine is generally used to invalidate state action to the extent it's a political this case it's fair to say that overall illinois implied consent statutory scheme if applied reasonably in light of the think decision does not run afoul of the doctrine yes the state has a legitimate interest in keeping intoxicated drivers off the road therefore it is constitutional to impose the statutory suspension based on a refusal of a warrantless search assuming the circumstances that render the statutory scheme constitutional exist to accept the secretary's argument would mean that the fact that someone once in the distant past drove a motor vehicle subjects them to this warrantless search under penalty of suspension anytime and anywhere as long as evidence relevant to the investigation of fault and responsibility for the accident may be obtain now even assuming the secretary's jermain this test were political in order to pass fourth amendment muster it would have to be germane to a legitimate state's interest other than ordinary evidence gathering state as long as the search might yield evidence relevant to their investigation there is a sufficient nexus to the legitimate goal of keeping the highways well that test frankly would permit virtually limitless use of the where evidence suggests that the driver was intoxicated at the scene this isn't one of those cases if there were fines no warrant is needed to punish noncompliance with an intrusive search in this case it is effectively saying that there is an unlimited amount of time and distance from the scene of an accident during which the police can use the implied consent scheme to undertake ordinary law enforcement action evidence gathering without  e now there are other mistakes in the secretary's exposition of this doctrine of one conditions contrary to the secretary's argument the fact that a person can avoid the unconstitutional action by refusing to participate in the benefit in other words refuse the search in this case give up your license that's not relevant and that that doesn't render the scheme entirely constitutional regardless of the circumstances in codes versus st john's river water management which secretary referred to earlier and cited in his brief exactly this point the supreme court noted that the florida supreme court puzzled over how the government's demand for property can violate the takings clause even though no property of any kind was ever taken but the court said the right not to have property taken without compensation and here's a quote from koontz as you know other on unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of course of pressure impermissible denial of a governmental benefit is a constitutionally part miserable injury therefore your honour's it is not a cure for this and reasonable use of the implied consensus seemed to say as the secretary does repeatedly and there's a second flaw in the secretary's exposition of the unconstitutional conditions doctrine in the fourth amendment context an optional search i e one which can be avoided by giving up that a benefit still requires the tailoring of that search to meet special needs not ordinary law enforcement or just versus lowery again seven circuit inciting what would be a reasonable condition imposed on fourth amendment rights the court refers to search of airline passengers through a medical metal detector before boarding an airplane well obviously the special need here is airline sa the secretary's jermain this argument takes this case out of the special needs of the warrantless search here was as a secretary of knowledge is germane only to gather facts for an accident investigation that was not tailored to the state's interests keeping intoxicated drivers off this from happening was not at the roadside and when he was he was determined not to have been here for all these reasons we believe the circuit court correctly rule the plainest argument continues to conflate the fourth amendment analysis with the unconstitutional conditions analysis and to hold that the two are one in the same fundamentally asks this court to reverse decades of u s supreme court precedent saying the two tests are not exactly the same now the plaintiff relies upon and mentions the burgess decision out of the seventh circuit which we identified in our brief i think it's critical to know that in burgess the court was attempting to draw a line as to the rough proportionality component of the dolan standard regarding unconstitutional conditions specifically the court there said it would be it would not be proportional it would not be reasonable to impose strip search  every single person that which to visit any inmate in an illinois prison it did note however that it would be reasonable to condition ordinary searches metal detectors less invasive searches for people visiting prisoners and it also said there is probably a strong argument that if the only if this strip search rule applied only to death row inmates that in that circumstance it may well be a proportional burden given the desperation of people who are on death row so it seems to me that ultimately burgess stands for the proposition that this is an area of law in which we're drawing lines and the line is not simply whether or not the government has heard in the exercise of a constitutional right to even the slightest degree as to the coos decision i think it's important to note the language that the plaintiff identified here during his presentation and the critical language there was that the government cannot use coercive pressure to get someone to surrender their constitutional right it's exactly what we're say we're just saying that we're not applying coercive press or pressure here something that is so substantial as to overwhelm the will and i think we can say that with a great deal of confidence because the u s supreme court in upholding this very t statutory regime over and over and over again has emphasized that you could not argue that consent given to a search in the context of a threat that you will lose your driver's license if you don't would overwhelm your will and make the search functionally involuntary for purposes of the exclusionary rule under the fourth amendment so i again the test cannot be the one that the plaintiff is advocating for and i think that's particularly critical to know in light of the supreme court's recent decision in the mcnealy case in mcneely the us supreme court said that under the fourth amendment warrant requirement you have to get a warrant if you have the opportunity sufficient time to get the warrant if you want to conduct an involuntary search against someone's will well the problem with that is that now and in as the court pointed out nearly in the age of cellular telephones advance communication that will apply in almost every single case this with function if the mcne y rule is the one that governs when this sort of statutory regime can be constitutionally applied it would functionally invalidate it large number of the consent searches that are performed on our nation's highways as a result so if anyone is asking for overbroad rule it would be the plaintiff here and i'd emphasize that in a mcneilly the court in identifying this rule regarding the war requiring says even if you can't even if you can't conduct the search states still have a valid and powerful tool that they're supposed what it describes as a legal tool and that is the ability to suspend a driver's license based upon the lack of consent so even the mcnealy case itself does not invision that the test for whether or not need a warrant under the fourth amendment will be exactly coextensive with young constitutional conditions about right now certainly a number of cases for a number of years have proceeded on the prematurely rule which is that because the bodies metabolizing evidence as it goes on as as you go on that involuntary search is almost always going to be constitutionally permissible mcneely fundamentally changes that and that's why we have to resort to the constitutional conditions doctrine but it's a powerful doctrine indeed it is one that has been recognized to be able to overcome basic first amendment protections of course political speech it has been one that has been recognized to apply in the context of taking so it is not as though this is a completely novel concept and it has applied in numerous contacts for a number of years i don't so add that the united states supreme court has in a number of different circumstances says it is reasonable to condition a government benefit on something that based on a search in a context that looks very much like the unconstitutional conditions doctrine in the vernonia school district case in particular the court said it constitutionally pretty permissible to condition participation in interscholastic athletic us on an agreement to allow warrantless suspicion less involuntary chemical tests that case was later expanded in the url's case several years later to apply to all after school activities the skinner case that we referenced in our brief said it's perfectly valid to require that someone undergo a chemical tests if they are a conductor  and involved in an accident as a condition for their continued employment as the conductor of a train and in the funk rock case that we cited in our brief the court said it is perfectly reasonable to condition your position as a customs official because you carry a firearm on your agreement to random drug testing mr earle oh forgive me for interrupting but i'm been thinking about what you are you'd about mcneely and i want to make sure i understand your argument i thought mcneely specifically said there was no search conducted here and that's the fourth amendment is not violated by a search that never took place the question here is whether you can attach a consequence for the refusal to give the consent to search and that has to do with  with i think the degree of course of this it has to do with the degree to which the proportionality test that i refer to i think that the course of this element is part of that test but ultimately the test is not simply whether or not the fourth amendment would demand the war if you want to conduct the test against someone's will the two cannot be one in the say if it is the mcnealy has thrown this implied consent regime into complete flux in a way t specifically said it wasn't doing so but your initial response was distinguishing not you said suspicion was less is the suspicion here pretty evidence of drug paraphernalia in his car and so while he might not appear to be intoxicated at the time of the accident it's entirely possible that he was under the influence of the time so i don't think this is a suspicion will serve the other thing i'll add here is that to some extent the plainest argument for is too much if all of the factors indicate that they could have obtained a war that would seem to make this in more proportional intrusion and fourth amendment in the context of the fourth amendment search for purposes of the unconstitutional conditions interest in protecting the public from intoxicated drivers the interest here is not here evidence gathering the interest here is to protect the public from someone that right now the illinois secretary of state can't certify is someone who doesn't threaten the lives of everybody else who is on the road with the reason for this requirement is the secretary needs to be able to say the people who are licensed to drive in illinois are safe for you to share the road under these circumstances where the litigant has been involved in a fatal accident woman lost her life as a result of this and was arrested for in moving violation that caused that accident it seems to me that you can't say that someone who refuses to undergo a chemical test is someone who is safe to share the road with any other result would seem to me to needlessly threaten public safety in a way that the constitution simply does not mandate is there any if we accept your view is there any limitation on when the requests could remain just as carmen i think the answer to that question is yes and it's going to depend upon the individual the individual facts of a particular case i think the time limitation element here was really only extended because we were dealing with marijuana which will turn up in a chemical test several days after its usage again as i think i said in my opening presentation if we were dealing with a bottle of whisky that had been discovered in the car we would not be making this argument we would absolutely can see that in that circumstance it is just your fishing expedition but here the chemical test because of the nature of the narcotic that was suspect suspected of being used here we think that in that circumstance we have far more of that direct connection to the