Nov. 7, 2017 – Can an unconscious person suspected of driving drunk consent to a blood draw based on implied consent? That is an issue the Wisconsin Supreme Court may decide, recently accepting review of an implied consent case and 10 other cases.

A trial court ruled that defendant Gerald Mitchell consented to the blood draw, even though unconscious, because a provision in Wisconsin’s implied consent law “makes clear that an unconscious operator … cannot withdraw their consent to a blood sample.”

Wisconsin’s implied consent law says anyone who drives on Wisconsin’s roadways “is deemed to have given consent to one or more tests of his or her breath, blood, or urine” for the purpose of determining the quantity of alcohol or drugs in their system.

Under Wis. Stat. section 343.305(3)(b), if someone is unconscious, there is a presumption that the person has not withdrawn consent and a blood draw can be administered if law enforcement has probable cause for a drunk driving arrest.

Police had received a tip that Mitchell was driving drunk, but police found him walking down the street showing signs of intoxication, his minivan parked nearby. A breath test revealed an alcohol concentration of 0.24, and the officer arrested him for OWI.

Mitchell, who had six prior OWI convictions, fell unconscious and police transported him to the hospital. The officer did not apply for a warrant to obtain the blood sample.

The court denied Mitchell’s motion to suppress the blood test. The court agreed that Mitchell had given implied consent and section 343.303(3)(b) allowed the blood draw.

The court of appeals certified the case to the supreme court, asking whether a warrantless blood draw violates the Fourth Amendment if administered on an unconscious person without the presence of exigent circumstances.

The supreme court tussled with this issue last term. In State v. Howes, three justices ruled that the exigent circumstances justified the warrantless blood draw, separate from the implied consent provision that is applicable to unconscious drivers.

Two justices ruled that the blood draw could be supported by implied consent alone, without exigent circumstances, since drivers are on notice. And three justices ruled that the unconscious driver provisions of the implied consent law are unconstitutional.

Other Cases

The supreme court also added 10 other cases to its docket. The following provides a short summary of each case. Full summaries are available on the court’s website.

Wisconsin Bell v. LIRC, 2016AP355 (WFEA, disability accommodation)

Charles Carlson, diagnosed with bipolar disorder, worked as a call center representative at Wisconsin Bell. In 2010, he was suspended for disconnecting calls. Upon his return, he was fired for continued call avoidance and for instant messaging on the job.

Carlson filed a complaint, alleging that Wisconsin Bell’s actions were based on his disability in violation of the Wisconsin Fair Employment Act (WFEA).

The Labor Industry Review Commission (LIRC) sided with Carlson, applying an “inference theory of causation” and concluding that managers knew Carlson had a bipolar condition but fired him without making appropriate disability accommodations.

A circuit court reversed LIRC but an appeals court upheld LIRC’s decision, concluding that Wisconsin Bell fired Carlson based on conduct caused by his disability. The appeals court upheld LIRC’s decision, granting the agency great weight deference.

Voters with Facts v. City of Eau Claire, 2015AP1858 (tax incremental financing)

Four limited liability companies and 14 individual plaintiffs formed Voters with Facts and challenged city resolutions that created a new tax incremental district (TID) and amended another TID, impacting the financing of a riverfront development.

The group’s notice of claim was disallowed, and the group sought judicial relief. Ultimately, the court of appeals ruled that the voters lacked standing to challenge the TIDs through a declaratory judgment action, but had standing to challenge through certiorari review. The supreme court will examine the standing and other issues.

Golden Sands Dairy LLC v. Town of Saratoga, 2015AP1258 (zoning, vested rights)

Golden Sands Dairy wants to operate an “integrated dairy farm” on more than 6,000 acres of land within the Town of Saratoga, including seven farm buildings. In prior litigation, an appeals court upheld the dairy’s vested right to building permits.

But the town subsequently rezoned, prohibiting the planned agricultural use of the land. The circuit court ruled that Golden Sands Dairy’s right to building permits vested before the rezoning occurred and the dairy relied on the zoning regulations in its application.

An appeals court reversed, agreeing with the town that vested rights in the permit did not necessarily equate to vested rights in all land identified in the building permit.

McNally v. Capital Cartage Inc., 2015AP2627 (real estate, listing contract dispute)

The two sole shareholders of Capital Cartage, a moving and storage company, entered into a listing contract with a real estate broker to sell the company for $1.2 million.

Prospective buyers offered the $1.2 million but had additional terms, including a no-compete. Also, one shareholder was required to stay on without pay for a period of time. The business owners declined the offer, and McNally sued for his $72,000 commission, arguing that he had procured buyers in accordance with the listing contract.

Capital Cartage countered that the additional terms were substantial variances from the listing contract. The circuit court ruled that the additional terms were not substantial variances because they did not conflict with the listing contract, and a jury sided with McNally.

The appeals court affirmed, noting that Capital Cartage’s shareholders did not point to the additional terms when they rejected the offer.

State v. Scott, 2016AP2017 (involuntary treatment, competency)

After Andre Scott was convicted of battery, disorderly conduct, and kidnapping, he filed a postconviction notice. Several years later, the court appointed a public defender.

Counsel requested a competency evaluation. Scott was diagnosed with schizoaffective disorder and the evaluator concluded that he was incapable of assisting in his defense. The evaluator also believed that his competency could be restored with treatment.

Scott refused treatment. The court ultimately ruled that Scott was not competent to proceed or to refuse medication and treatment. Involuntary treatment was ordered. Counsel argued that Scott was not dangerous and did not want treatment.

After a series of appeals, Scott now argues that a postconviction court cannot order a non-dangerous defendant to be involuntarily treated to competency status.

State v. Odom, 2015AP2525 (DNA surcharge, plea withdrawal)

This certification from the appeals court will examine whether a defendant must be advised of DNA surcharges for each felony and misdemeanor conviction prior to entering a plea, and whether a defendant is entitled to withdraw his plea.

Before entering his plea, Tydis Odom asked about the penalties. The court did not mention per-count DNA surcharges that would apply to him. After entering the plea, Tydis filed a postconviction motion requesting a plea withdrawal because he was not informed of the DNA surcharges. The appeals court asks for clarification on whether multiple DNA surcharges can amount to “punishment” such that failing to inform the defendant before the defendant enters the plea could give rise to a plea withdrawal.

Federal National Mortgage Association v. Thompson, 2016AP1496 (foreclosure, claim preclusion)

In this case, a certification from the appeals court, the supreme court will examine whether claim preclusion bars a mortgage lender from bringing a second foreclosure action for default after a first foreclosure action on the same note was dismissed.

The first foreclosure action alleged that Corey Thompson failed to make monthly payments. The court dismissed the action “with prejudice,” concluding the lender failed to provide evidence of a required notice and failed to present the original note.

An appeals court ruled that the lender failed to argue, in circuit court, that the circuit court had erroneously dismissed the case “with prejudice,” though acknowledging the lender had a meritorious argument. Bank of America acquired the loan in 2011.

Bank of America filed a second foreclosure action against Thompson, who argued the claim was barred by claim preclusion. The circuit court ruled that a claim involving nonpayment occurring after the first dismissal was not barred.

This time, the court granted a foreclosure judgment against Thompson. The appeals court certified the case for clarification on whether and how claim preclusion applies.

State v. McAlister Sr., 2014AP2561 (newly discovered evidence)

David McAlister was convicted of armed robbery and possession of a firearm by a felon. The appeals court affirmed, rejecting his challenge to the trial testimony of two accomplices who McAlister said received undisclosed concessions from the state.

Several years later, he requested a new trial based on the affidavits of three new witnesses who said the accomplices lied when they testified about McAlister. But the circuit court dismissed the motion, questioning the affiants’ credibility.

The supreme court will examine whether the affidavits constitute new evidence or whether it is merely an attempt to retry the credibility of the trial witnesses.

State v. Jones, 2015AP2665 (Daubert standard)

Anthony Jones was involuntarily committed as a sexually violent person after serving a prison sentence for sexually violent offenses.

The state’s expert testimony relied in part on actuarial assessments to determine whether Jones met the criteria for commitment: the Minnesota Sex Offender Screening Tool-Revised and the Rapid Risk Assessment Sex Offender Recidivism.

Jones moved to exclude the instruments as unreliable under the Daubert standard for the admissibility of expert testimony, alleging flaws. The circuit court denied the motion and the appeals court affirmed, concluding the Daubert standard was properly applied.

Shugarts v. Mohr, 2016AP983 (underinsured motorist coverage)

In this case, the supreme court will examine what constitutes proper notice of a claim for underinsured motorist (UIM) coverage and whether an insured gave proper notice.

A deputy sheriff, Robert Shugarts II, was injured while on duty in his county-owned squad car. Dennis Mohr was the driver who struck Shugarts.

Mohr had vehicle insurance with Progressive Insurance Co. The squad car was insured by Wisconsin Municipal Mutual Ins. Co. (WMMIC), including UIM coverage. Shugarts also had his own auto and UIM insurance policy with Allstate Property & Casualty Co.

Ultimately, Progressive settled for Mohr’s policy limit, $50,000. Shugarts then pursued WMMIC, but a trial court ruled the WMMIC was not an insured under the UIM policy. Shugarts then pursued Allstate, his own insurer, but Allstate argued that Shugarts failed to timely notify Allstate of its intention to make a claim as a result of the accident.

The circuit court ruled in favor of Allstate, and an appeals court affirmed, concluding Shugarts should have notified Allstate when Progressive initially denied the claim.