May 15, 2019 – It’s a question the Wisconsin Supreme Court has thoroughly debated the last few terms: Does Wisconsin’s implied consent law justify warrantless blood draws on unconscious persons arrested for operating while intoxicated (OWI)?

Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood or urine” to determine the presence of drugs or alcohol.

Under Wis. Stat. section 343.305(3)(b), "[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection." Thus, Wisconsin law allows blood draws on unconscious individuals.

But the Fourth Amendment’s protections against unreasonable searches and seizures still applies. That is, police cannot conduct searches (including chemical testing for evidence of alcohol), without a warrant, unless some recognized exception applies.

The Wisconsin Supreme Court remains divided on whether implied consent provides a per se exception to the Fourth Amendment’s warrant requirement for blood draws on persons arrested for OWI who cannot withdraw consent because they are unconscious.

Now, the U.S. Supreme Court will review the constitutional question raised by the intersection of Wisconsin’s implied consent law and the Fourth Amendment.

The Court recently heard oral arguments in Mitchell v. Wisconsin, which could be a landmark decision in the Fourth Amendment-OWI area, as many states have implied consent laws that apply when persons are suspected of drugged or drunk driving.

According to attorney Marcus Berghahn, the U.S. Supreme Court’s ultimate decision will affect many citizens, one way or another. In 2015, in Wisconsin alone, there were 24,000 OWI-related convictions, the highest in the nation.

“OWI law is one area of law where constitutional law is not theoretical: it affects every person’s rights,” said Berghahn of Hurley Burish S.C. in Madison.

Blood Draw in Mitchell

Sheboygan police found Gerald Mitchell shirtless near a beach after receiving a tip that he was possibly driving drunk. Mitchell’s speech was slurred, his walking appeared unbalanced, and he admitted that he parked his van because he felt too drunk to drive.

A preliminary breath test revealed a blood alcohol concentration of 0.24, and Mitchell was arrested. But under section 343.303, preliminary breath tests can only be used to determine probable cause for an arrest. Police must do follow-up chemical testing, with certified testing instruments, in order for the results to be used as evidence.

Officers may have believed an evidentiary breath test was impossible because Mitchell’s condition worsened. They transported him to a hospital for a blood draw, but he became unconscious. Thus, he did not affirmatively consent to the blood draw, which revealed a blood alcohol concentration of 0.22 percent, almost triple the legal limit.

In circuit court, Mitchell filed a motion to suppress the blood test results as evidence, arguing police violated his Fourth Amendment rights in directing the blood draw without his affirmative consent. The circuit court denied the motion, and he was convicted for operating while intoxicated (OWI), his seventh offense. An appeals court affirmed.

Supreme Court Divided in Mitchell

Last summer, the Wisconsin Supreme Court upheld (5-2) Mitchell’s OWI conviction. But the justices did not reach a majority on the rationale in reaching that conclusion.

Three justices – Chief Justice Patience Roggensack and Justices Annette Ziegler and Michael Gableman – said implied consent supported the warrantless blood draw.

Justices Daniel Kelly and Rebecca Bradley said exigent circumstances, not implied consent, supported the blood draw. Justices Ann Bradley and Shirley Abrahamson said the blood draw was not justified by implied consent or exigent circumstances.

The result was similar to the supreme court’s 2017 decision in State v. Howes, which also involved a warrantless blood draw on an unconscious person arrested for OWI.

In the Howes case, the court similarly upheld an OWI conviction by a 5-2 vote. But only two justices relied on implied consent (Gableman and Ziegler). Three relied on the exigent circumstance exception (Roggensack, Kelly, and R. Bradley), and Abrahamson and A.W. Bradley concluded that the blood draw was not justified on either ground.

The supreme court would be facing the same implied consent question this term, in State v. Hawley, which was certified to the supreme court by an appeals court that said it could “discern no principled way of deciding the case in light of the law that binds us.”

But the certification is on hold pending a decision by the U.S. Supreme Court in Mitchell v. Wisconsin, which is reviewing the Wisconsin Supreme Court’s Mitchell decision.

Berghahn said these cases reappear because drunk driving is a common occurrence. In 2015, for instance, close to 3,000 people were injured in drunk-driving related accidents.

“But the unconscious driver scenario is probably more common for an appeal, because it puts the issues of implied consent and exigent circumstances in stark relief; it’s an ideal law school exam scenario,” Berghahn said.

More on the Mitchell Decision

In Mitchell, Chief Justice Roggensack and Justices Ziegler and Gableman (now retired) ruled that Wisconsin drivers give implied consent to blood draws if there is probable cause of OWI, and drivers forfeit a right to withdraw consent if rendered unconscious by the volume of alcohol ingested.

“Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin's roads and drinking to a point evidencing probable cause of intoxication,” Chief Justice Roggensack wrote in a lead opinion. Further, she said Mitchell “forfeited all opportunity” to withdraw his consent previously given by drinking to the point of unconsciousness.

Four justices did not follow the lead opinion on implied consent. Justice Kelly concurred, joined by Justice R. Bradley, concluding implied consent “cannot justify the blood draw performed on Mr. Mitchell,” but it was still justified on other grounds.

Justice Kelly said implied consent is consent granted by the legislature, “and legislative consent cannot satisfy the mandates of our State and Federal Constitutions.” However, Justices Kelly and R. Bradley still ruled that a warrant was not required.

“[N]o warrant is necessary to perform a blood draw when an individual has been arrested for OWI, the suspect is unconscious, and there is a risk of losing critical evidence through the human body's natural metabolization of alcohol,” wrote Justice Kelly, synthesizing OWI-Fourth Amendment cases decided by the U.S. Supreme Court.

In Missouri v. McNeely, 569 U.S. 141 (2013), Kelly explained, the U.S. Supreme Court declined to rule that dissipation of alcohol always creates an exception to the warrant requirement, but that dissipation of alcohol could provide an exception in some cases.

A less-intrusive breath test could not be performed on Mitchell, Justice Kelly noted. Thus, police were justified in directing a blood draw as the only means available to preserve evidence of alcohol in Mitchell’s bloodstream, as an exigent circumstance.

One Way or the Other

Under Justice Kelly’s rationale, a warrant would arguably not be required to conduct a blood draw if an evidentiary breath test was unavailable, which would always be the case for unconscious persons incapable of doing a breath test. In the unconscious-driver cases, then, exigent circumstances would arguably always be present.

“Justice Kelly’s rationale seems close to a categorical (or per se) rule,” Berghahn said. “Such a rule favors the collection of evidence, and it’s easy for police to understand.

“While the desire for a bright-line rule is understandable, the Fourth Amendment has not historically favored the adoption of an overly broad categorical approach that dilutes the warrant requirement in a context where significant privacy interests are at stake.”

Berghahn said legal processes, developed over the past few years, have made it easier for police to obtain search warrants to seize blood samples from suspected drunk drivers (regardless of whether the driver is conscious). “In most cases, the search warrant procedure to seize an evidentiary blood sample strikes the proper balance between recognizing constitutional rights and public safety,” he said.

Justice Kelly did address privacy interests and voiced concern with the implications of relying on implied consent, instead of exigent circumstances, to justify the blood draw.

That is, he appeared concerned about codified consent. “Through combined legislative and executive activity, oceans of regulations can wear away zones of privacy, allowing warrantless inspection regimes to follow in their wake,” Justice Kelly wrote.

U.S. Supreme Court Will Decide

Justice A.W. Bradley dissented in Mitchell, joined by Justice Abrahamson, concluding that the police could not rely on implied consent in drawing blood, and the state had already conceded that there were no exigent circumstances to justify the warrantless blood draw. Those dissenting justices would have reversed the OWI conviction.

After Mitchell, it appeared a four-justice majority openly rejected the implied consent law as a basis to conduct warrantless blood draws on unconscious OWI suspects. But that inverted majority didn’t help the appeals court in the Hawley case that followed.

The appeals court certification noted that “the views of justices who dissent from a judgment may not be considered when determining whether there is binding law.”

Abrahamson and A.W. Bradley dissented in Mitchell, so their views were not considered in deciding whether a majority rejected implied consent as a per se exception.

But the U.S. Supreme Court’s decision will be considered binding law when it decides the case, and it will be binding on all states that have similar implied consent laws.

“The last six years have seen a number of important decisions from the U.S. Supreme Court that touch on the reasonableness of police action in the investigation and prosecution of drunk driving offenses,” Berghahn said.

“A decision that makes it easier for police to collect evidence in drunk driving cases will have a significant impact on the prosecution of cases,” he said. “The question is whether the decision will still protect significant privacy interests that are at stake.”

Wisconsin lawyers Andrew Hinkel (Assistant State Public Defender) and Hannah Jurss (Assistant Attorney General) argued Mitchell v. Wisconsin before the U.S. Supreme Court on April 23. A decision is expected before the Court ends its term in June.

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