they use the word extract because the state threatens their refusal to submit to chemical analysis will be punished with what the supreme court has recently described as significant several criminal consequences well not only loses driving privileges for at least a year but is also prejudiced at their subsequent criminal trial because the state is allowed to admit one's reliance on fourth minute rights a subsequent evidence of guilt so the state threatens its people with significant civil criminal consequences to though the value of blood alcohol evidence cannot be denied the scheme by which it is obtained here in illinois is constitutionally affirmed first of all the supreme court has recognized that like any search that intrudes into the body on the body surface that is breath analysis is indeed a search and is therefore subject to the strictures of the fourth amendment so people have the right and because both analysis is a search people have the constitutional right as they do with any search to refuse consent circumvents the fourth amendment work requirement because the point because to punish the exercise of a constitutional right is to vera is to violate that very right so what we have here is a warrantless evidence gathering search scheme that circumvents constitutional protection with the inherently course of threat of significant civil and criminal consequences and of course any search conducted outside of the judicial process is per se an reasonable under the fourth amendment unless of course one of the specifically establishing world the needed exceptions applies and in fact in mcneely the supreme court recently held in the context of chemical analysis specifically board analysis that this per se rule applies in the court even further held that the warrant require requirement and all the u i cases and with respect to searches of it to arrest the court held that absent an emergency want to require one intrusion into the human body is concerned even when the search is conducted following a lawful arrest purpose of the implied consent statute was to reduce detain the dangers posed by chemically impaired drivers as i mentioned however the supreme court has since clarified the special needs analysis and primary purpose is no longer determined by what the search really seeks to achieve that is its adamant bill such as reducing the dangers posed by chemically impaired drivers and said primary purpose is not determined by examining the means employed to that end but is its immediate objective constitutionally distinguishable when they should be his sobriety checkpoints actually removed from drivers from the road in annapolis as drug interject and tradition checkpoints merely sought to gather evidence for law enforcement purposes and overnight the sobriety checkpoints or is implied consent statute does not aid in the media removal of traffic drivers because it only applies or to the person has already been arrested and no longer poses a safety hazard and the only takes place thirty six days after the person has received notice and most likely drug interdiction checkpoints that the court found unconstitutional the implied consent statute seeks only to gather evidence for law enforcement purposes as i mentioned at the very beginning its its very nature and design illinois implied consent statute is indeed an evidentiary tool because it compels the submission of evidence by threat and if one refuses again refusal evidence is generated nonetheless and as this court has even driving on public roads such implied consent does not constitute consent under the fourth amendment and in fact the kansas court of appeals recently invalidated a portion of their state statute telling just that that new case stands for the proposition that impl consent constitutes consent under the fourth amendment and this is seems likely because the first amendment because first amendment consent must be received it cannot be extracted by implicit means and here implied consent is implicitly extracted because it's a condition precedent for receiving a driver's license and to bed and there is of course the classic statement that driving is a privilege and not a right and there is no doubt true the doctrine of unconstitutional conditions prohibits the state from conditioning a valuable privilege on the of a constitutional right the supreme court upheld this rule is nine hundred twenty six that is the supreme propulsion that is that if a state can manipulate a constitutional guarantee out of existence by conditioning a privilege on its relinquishment it can likewise manipulate any constitutional guarantee of existence and since the supreme court has repeatedly utilized the straightforward legal principle in a variety of contexts a commercial driver's license to buy and use for mess to government contracts and in fact courts across the country have more recently been using the doctrine of unconstitutional conditions and striking down mandatory drug testing of welfare beneficiaries the fact is the state cannot condition a valuable privilege such as a driver's license on the relinquishment of a constitutional right because again that were permissible in writing to be easily manipulated out of existence in moving on to the the balancing test versus the per se rule the state here without any authority and actually without even giving on a review of this issue yields actually no basis in law for utilizing the balancing test and to the contrary the case will actually suggest that the balancing test would be appropriate here and do some research there are socially true lines of cases that utilize purpose again such as is the case with special needs and the general fourth amendment approaches the say suggests this court your choice here is derived from this line of cases however there's only been used by the united states supreme court and two instances in the very limited context of probation and parole and because here we deal we don't deal with probation or parole and because the searching here serves the primary purpose of gathering evidence for law enforcement even the special needs nor the general fourth amendment balancing approach would apply and with respect to terri and its line of cases those are all that can be described as a minimal intrusion balancing test it's that chess is only appropriate where there is both a very minimal intrusion and moreover where compliance with the royal requirement as a practical matter would basically be impossible and because here any search beyond the body surface is constitutionally significant is therefore not a minimal intrusion and moreover it's perfectly practical for law enforcement to at least attempt to comply with the warrant requirement because of these two reasons the minimal intrusion balancing test is not appropriate either nevertheless an intrusion into the body and it seems that the first amendment protects is sacrosanct intrusions into the human body it's similar to intrusions into the home and so we need to respect it is a cop it may not be as significant physical invasion but it's similar as a significant privacy invasion because the state intrudes into the into the human body seeking incriminating evidence and they use technology in doing so  and that goes to my point that that although he was allowed to refuse and thus was allowed to exercise his constitutional right he was nevertheless punished by doing so because at his subsequent trial the state not only emitted the warning to and so the stay here stated multiple times that he refused the test and then towards the end of the closing argument just before the jury retired for job deliberations that stephen specifically explained that that mr gayety worked out of town and that his livelihood is dependent upon his driver's license and is therefore very telling that he would choose up to it he would choose to give up his driver's license rather than submit to the test and so this is this is a constitutional error because it constitutes punishing someone for doing no more than exercising their fourth amendment right court whether these implied consent laws constitute a punishment for exercising prosecution right and last i would point out that not suggesting that the adverse inference commentary or the license suspension is altogether inappropriate we're simply suggest i'm simply suggesting here that officers comply with the basic command of the fourth amendment and at least attempt to get a warrant and if they do so again you said that they  it it just seems that people should be able to demand with impunity and warrant before the government intrudes their body and search incriminating evidence and the idea that the state can punish people first simply doing no more than exercising a constitutional right is not just unconstitutional it's plainly wrong and unless this court has any further questions i would just respectfully request that this court find the only supplied consent statute facially unconstitutional and accordingly the clarification on the constitutionality of the implied consent statute would be helpful and especially a fourth amendment perspective this court doesn't need to go into the constitutional issue here because there was clearly sufficient evidence to convict defendant regardless of any mention by the prosecutor of its refusal breath test this is an example of dui case and that would be you i arrest procedure that sobriety test again at the police department and then refused a breathalyzer these both field sobriety test sets were videotaped both were videos were shown to the jury and the arresting officer also testified clearly there was sufficient evidence here to convey defendant here regardless of regardless of the anecdotes by the closing argument by the prosecutor that being said of his penalty for refusing in this case the defendant did refuse more the consequences of the statutory summer suspensions the defendant posits the argument as sort of a defend exercising his constitutional right this court of people vs when two thousand and nine specifically stated a person arrested for dui has no constitutional right to refuse to submit to a breathalyzer test  can i guess you could you could posit wasn't it that way the interesting thing and len is styling says under defendant's theory he would have after talking after informing the defendant statutory right not to file is income tax return because the legislature has provided a penalty for that failure from here the defendant was informed that he's going to lose his license which it is not a constitutional right as well as an initial matter states have a broad range of legal tools to enforce their drunk driving laws and to secure blood alcohol content evidence without undertaking warrantless nonconsensual blood draws for example all fifty states have adopted implied consent laws that the evidence of defendants refusal doesn't violate isn't a constitutional violation that the criminal proceeding so that's that's clearly our supreme court has that's been well settled for because of all things meyers thirty years old at this point and it's still good law the most important thing that i've found in my research is that make me only and the other two recent cases defendants cites from other jurisdictions they all have to do with the war anyone any case where the defendant refuses like in this case like an rawlings meyer they tackle it from a fifth amendment right against self incrimination which makes more sense because there's no search done here like ascent log in our supreme court and people vs fit fisher specifically stated the implied consent statute serves the little legislative purpose of promoting highway safety by assisting in the determination of whether driver suspected of intoxication are in fact under the influence of alcohol it's doesn't take much or will a logical leap to realize the deterrence factor that the implied consent law has for people that are possibly considering drunk driving  without that highly probative evidentiary tool the deterrence of drunk driving is significantly reduced of course there's many cases cited in my brief about the strong legislation what legislative governmental interest state interest in keeping the highways safe from drunk drivers again all fourth amendment analysis touches on reasonable miss that reasonableness is a balance between the intrusion on the on the person the privacy of the intrusion of privacy on a person and a legitimate government interest here the legitimate government government interest a strong obviously keeping drunk drivers off the highway as opposed to the minimal intrusion again this isn't defend it wasn't even subjected to a breath test alone a blood draw defend it was refused his protest and bore the consequences of losing his license from an intrusion standpoint it's minimal especially since the defendant is already under arrest as it is the first suspicion  application outside of that alternative that they suggested as far as the implied consent was to this holding because again it dealt with a warrantless nonconsensual blood draw over defendant's objection that actually happened  as opposed to here where the defendant who has no constitutional right to refuse a breath test exercised his withdrawal of his important implied consent barry consequences at any rate this isn't a violation of the fourth amendment and there's no case of thore that says otherwise are there any more questions judge may affect whether police can obtain a right and expeditious way and therefore may establish an edge and see that permits and a warrantless search so i guess i guess to be clear it seems implicit what the court is suggesting is that you know if the officers do make and i would just point out that the two passages there i've had no twelve or thirteen this of the court knows and then with respect to making nearly again the part that counsel recites regarding the implied consent i just want to be clear that is indeed not part of the majority opinion the mcnealy opinion it's kind of unusual because there's various sections and i believe in section three that that said and section three one of the justices essentially breaks off and that's actually not part of the majority holding to the extent that that's well that anyhow bill is that they found that refusal is actually a physical out and thus not a testimonial act and therefore it doesn't even invoke the fifth amendment concerns and so you can't even say that it's a exercise of a constitutional  right so of course and there's no punishment in that circumstance for exercising a right because again the fizzing memo does not apply to physical acts it only applies to compel testimonial evidence  a constitutional right if there's a statutory right to refuse but not a constitutional right that would that seems odd to me and unless the court has any further questions thank you thank you very much for your time