Bobeck v. Idaho Transportation Department

Judge GUTIERREZ,

dissenting.

I respectfully dissent from the majority’s conclusion that Bobeck consented to a blood draw. Since the United States Supreme Court issued Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), the Idaho Supreme Court has not yet addressed unconscious drivers within the context of Idaho’s implied consent law. In my view, an unconscious individual is incapable of giving the consent required for a warrant-less blood draw. Because Bobeck did not give actual consent to the blood draw, there is no warrant requirement exception applicable here. The…