In 2016, the United States Supreme Court held that law enforcement must obtain a warrant before forcibly withdrawing blood from a suspected drunk driver.
Writing for the majority, Justice Samuel Alito said, “It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”
Notwithstanding the precedent, the Wisconsin Supreme Court seems to think that it can continue to issue decisions that allow that law enforcement to withdraw an unconscious DUI suspect’s blood without a warrant in violation of both the Constitution and the United States Supreme Court. It did so again this week in the case of Gerald Mitchell.
“Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court’s reasons for not addressing the question we are deciding,” Wisconsin Justice Daniel Kelly wrote.
Mitchell was arrested back in 2013 on suspicion of driving under the influence, or “operating while intoxicated” as Wisconsin calls it. Mitchell passed out after he was arrested, but before he could give consent for officers to withdraw blood. While unconscious, an officer told Mitchell that he could refuse. Not surprisingly, Mitchell didn’t respond. The officer then directed hospital staff to withdraw Mitchell’s blood.
The blood sample indicated that Mitchell’s blood alcohol content was 0.22 percent, well above the legal limit of 0.08 percent.
Based on that information, Mitchell was convicted of driving under the influence.
Mitchell appealed arguing that the blood withdrawal was a violation of his right to be free from unreasonable searches and seizures. An appellate court sent the case to Wisconsin Supreme Court for clarification because the Wisconsin Supreme Court had previously decided that warrantless blood withdrawals were allowed in urgent situations where delay in obtaining consent could lead to the loss of evidence, namely the dissipation of alcohol in the driver’s blood.
The Wisconsin Supreme Court in Mitchell’s case justified the holding by citing Wisconsin’s Implied Consent law stating that drivers automatically consent to blood withdrawals when they have a driver’s license.
Writing for the majority, Chief Justice Patience Roggensack said, “Through drinking to the point of unconsciousness, Mitchell forfeited all opportunity…to withdraw his consent previously given.”
Justice Roggensack went on to cite the legislature’s efforts at stamping out drunk driving to justify the court’s position.
“Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin’s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated,” she wrote.
However, this rationale goes against exactly what the United States Supreme Court said in 2016.
“It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quire another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit,” Supreme Court Justice Samuel Alito wrote. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”
Wisconsin Supreme Court Justice Ann Walsh Bradley dissented from Justice Roggensack arguing exactly what Supreme Court Justice Alito had enunciated two years ago.
“This language compels a single conclusion: law enforcement needed a warrant here,” she said.
Bradley said the majority was merely using Wisconsin’s implied consent law to overrule the guarantees of the Constitution.
“Under the lead opinion’s analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand,” she wrote.
What’s the point of precedent if states continue to refuse following case law set by the highest court in this country, and refusing to follow it at the expense of constitutionally guaranteed rights?
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