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July 19, 2018

7/10/2018 7:30:00 AM
State Supreme Court upholds warrantless blood draw of unconscious driver
Conservative justice: Lead opinion calves off substantial piece of the Fourth Amendment

Richard Moore
Investigative Reporter


The Wisconsin Supreme Court ruled 5-2 last week that the state was within its rights to withdraw blood without a warrant from an unconscious person who had been arrested on suspicion of drunk driving.

The decision was the latest in a string of Fourth Amendment cases in which the state's high court sided with the state in warrantless entry appeals.

In State v. Mitchell, justices determined the Fourth Amendment rights of Gerald Mitchell were not violated when police ordered a blood draw without a warrant while Mitchell was unconscious.

Three justices - chief justice Patience Roggensack, and justices Annette Ziegler and Michael Gableman - ruled that drivers give implied consent to withdraw blood when they drive and police have probable cause of drunken driving, and that Mitchell gave up any statutory right to withdraw that consent because he was unconscious.

"We conclude that 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," the lead opinion by Roggensack stated. "Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under (Wisconsin law) to withdraw his consent previously given; ... which under the totality of circumstances herein presented reasonably permitted drawing Mitchell's blood."

Two justices - Daniel Kelly and Rebecca Bradley - concurred that there was no Fourth Amendment violation, forming a five-vote majority to uphold Mitchell's conviction, but they disagreed that implied consent laws justified the warrantless blood draw.

Justices Ann Walsh Bradley and Shirley Abrahamson dissented, with Bradley writing in the dissent that to allow a blood draw without a warrant runs counter to significant constitutional protections as well United States Supreme Court precedent.



The details

In the case, according to the decision, Gerald Mitchell was arrested in 2013 of operating while intoxicated and with a prohibited alcohol concentration, based on the test of blood drawn without a warrant while he was unconscious. Mitchell contended the blood draw was a search conducted in violation of his Fourth Amendment rights.

In May of that year, a caller advised city of Sheboygan police that he or she had seen an apparently intoxicated Mitchell get into a van and drive away. Less than an hour later, an officer found Mitchell walking near a beach, wet, shirtless, and covered in sand. He was slurring his speech and appeared off balance.

Mitchell acknowledged he had been drinking, the decision continues, saying he had parked his vehicle because he felt he was too drunk to drive. The officer administered a preliminary breath test, which showed a blood alcohol concentration (BAC) of .24, three times the legal limit for driving. The officer arrested him.

When they got to the police station, Mitchell's physical condition had deteriorated to the point where an evidentiary breath test would not be feasible, according to police. So they took him to a hospital for a blood draw instead.

At the hospital, after an approximately eight-minute drive, the decision states, Mitchell needed to be transported in a wheelchair where he sat "slumped over" and unable to maintain an upright sitting position.

At this point, police read him an Informing the Accused form, which gives an arrested person the statutory opportunity to withdraw his consent to a blood draw. Not in this case, however, the police state, because Mitchell was so incapacitated he could not answer.

The police officer then directed hospital staff to draw a sample of his blood. Mitchell did not wake up during the procedure.

The blood draw, which showed a BAC of .22, occurred about one hour after Mitchell's arrest.



The lead opinion

The first question considered by the justices forming the lead opinion was whether implied consent exists for blood draws when probable cause for drunken driving is present.

That one was a no-brainer to the three justices.

First, Roggensack pointed to the regulation of industries involved with liquor and firearms, noting they are subject to close supervision and warrantless inspection. By choosing to participate in certain businesses, Roggensack wrote, those persons had in effect consented to the restrictions placed upon them.

And so it is with driving, where the government has a significant stake in preventing drunken driving, Roggensack continued. By accepting the privilege to drive, voluntary consent to be subjected to significant governmental regulation is given.

"Some of the regulations to which drivers consent have never been challenged," Roggensack wrote. "For example, they agree to drive on the right side of the road; to comply with posted speed limits; and not to drive with a prohibited blood alcohol concentration."

And, she continued, 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.

"Consent is complete at the moment the driver begins to operate a vehicle upon Wisconsin roadways if the driver evidences probable cause to believe that he or she is operating a vehicle while intoxicated," she wrote. "As acknowledged by the United States Supreme Court, driving on state highways is a privilege; it is not a right. In the case before us, Mitchell chose to avail himself of the privilege of driving upon Wisconsin's roads. Because he did so while intoxicated, by his conduct he consented to the effect of laws that are relevant to exercising that privilege."

The second question was, was the consent voluntary?

In answering this question, Roggensack observed that Wisconsin has a long history of close governmental regulation of its highways in regard to drunken drivers.

"Stated otherwise, the privilege of driving on Wisconsin highways comes within the context of well-publicized requirements to provide samples of breath, blood or urine to law enforcement who have probable cause to believe that the driver is intoxicated," she wrote. "The Fourth Amendment question is whether drawing Mitchell's blood while he was unconscious was unreasonable and therefore in violation of Fourth Amendment prohibitions against unreasonable searches."

Mitchell claimed the blood draw was unreasonable. Because he was unconscious, he argued, he could not exercise his statutory opportunity to withdraw his consent, rendering that consent unreasonable and involuntary.

The three justices rejected that reasoning, noting Wisconsin law allows blood draws of unconscious persons when probable cause of drunken driving exists and that Mitchell's self-induced physical condition did not render the blood draw unreasonable under the totality of circumstances.

"First, by exercising the privilege of driving on Wisconsin highways, Mitchell's conduct demonstrated consent to provide breath, blood or urine samples ... if law enforcement had probable cause to believe that he had operated his vehicle while intoxicated," Roggensack wrote. "Second, (the officer) had probable cause to arrest Mitchell for driving while intoxicated. His speech was slurred; he smelled of alcohol; he had difficulty maintaining his balance; his preliminary breath test showed a BAC of 0.24, which indicates significant intoxication. Third, Mitchell chose to drink sufficient alcohol to produce unconsciousness. Fourth, by his conduct, Mitchell forfeited the statutory opportunity to assert that he had 'withdrawn consent' he previously gave."

Although consent must be voluntary, Roggensack wrote, it need not be knowing.

"Although no magic words are required to withdraw consent, the intent to withdraw must be unequivocal," she wrote. "Withdrawal of consent given under implied-consent laws also may be withdrawn. (The law) reminds drivers of the opportunity to 'withdraw' consent previously given. However, for many unconscious drivers, it may be that they have taken no steps to demonstrate unequivocal intent to withdraw consent previously given."

Finally, Roggensack wrote, the law affects only unconscious drivers for whom law enforcement has probable cause to believe the driver has violated statutory proscriptions on use of intoxicants.

"Therefore, those drivers who are unconscious but for whom law enforcement does not have probable cause to believe they drove while intoxicated will not be subject to the presumption (of the law allowing unconscious blood draws with probable cause)," she wrote.



Kelly, Bradley: Yes but no

In a concurring opinion, Kelly wrote - with Rebecca Bradley joining - that he agreed there was no Fourth Amendment violation for performing a blood draw on an unconscious individual who has been arrested for operating a motor vehicle while intoxicated.

But, he wrote, he took issue with the notion of implied consent: "I do not believe the state can waive the people's constitutional protections against the state," Kelly wrote.

In essence, Kelly continued, he believed "implied consent" is actually consent granted by the Legislature, not the suspect, and legislative consent cannot satisfy the mandates of state and federal constitutions.

Kelly said the lead opinion misunderstood the reasons certain searches of pervasively regulated businesses such as liquor and firearms do not require warrants.

"The searches considered there were not reasonable because a legislature said they were; they were reasonable because they did not intrude on the affected person's reasonable expectation of privacy," he wrote.

Regulation of the liquor industry dates back to England of the 18th century, Kelly wrote, and history demonstrates that a liquor retailer has no reasonable expectation his premises would be free from regular governmental inspection. The 'pervasive-regulation' doctrine, therefore, allows warrantless inspection regimes only when the nature of the business at issue is such that the proprietor does not have an expectation of privacy.

"The court should not venture into the 'pervasive-regulation' arm of Fourth Amendment jurisprudence without a great deal of fear and trepidation," he wrote. "The rationale justifying this doctrine is too easy to abuse. If increased regulation decreases the areas in which individuals have a reasonable expectation of privacy, then the Fourth Amendment's protections are effectively contingent on the reach of the regulatory state. Through combined legislative and executive activity, oceans of regulations can wear away zones of privacy, allowing warrantless inspection regimes to follow in their wake."

The decision at hand was a good example of the doctrine's erosive power, Kelly contended.

"Driving, the court observes, is subject to many regulations, what with all the rules about staying on the right side of the road, speed limits, interactions with emergency vehicles, et cetera," he wrote. "The court could have mined that vein even more deeply than it did - under any definition, driving truly is pervasively regulated. The temptation to reach for the doctrine under these circumstances is nearly irresistible."

And why wouldn't it be? Kelly asked.

"It fairly demands to be heard here," he wrote. "But this is a powerful and unruly force, and when the United States Supreme Court set it in motion, it impressed on the doctrine no internal logic capable of limiting its reach. The court thinks to wield this doctrine here with limited effect - after all, we are simply justifying a warrantless blood draw. But the court misapprehends how the doctrine functions and, therefore, its consequences."

If we are of a mind that this doctrine justifies the implied consent law, we may do so only if we first conclude that regulatory pervasiveness has removed the subject of its operation from the reasonable expectation of privacy, Kelly continued.

"That is to say, because driving is pervasively regulated, those who travel on Wisconsin's highways have no reasonable expectation of privacy as they engage in that activity," he wrote. "And if that is true, it would sweep away a large body of Fourth Amendment jurisprudence as it relates to traffic stops, searches of automobiles, searches of drivers and passengers, et cetera. Wielding this doctrine as the court does today, if we are serious about its application, calves off a substantial piece of the Fourth Amendment."

That said, Kelly wrote, no Supreme Court decision has yet opined directly on whether a warrant is necessary to perform a blood draw under the circumstances at hand; and previous cases indicate that a warrant is not 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.

"For more than half a century now the United States Supreme Court has recognized that warrantless blood draws can be constitutional," he wrote.

Ultimately, Kelly wrote, the lead opinion is of two minds on whether a suspect may refuse a blood test. On the one hand, it says that in a state with civil penalties for refusal to submit to a blood draw, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test, but then almost immediately afterwards says, of course, consent voluntarily given before a blood draw may be withdrawn with or without a statutory reminder.

So which is it? Kelly asked: May a suspect refuse a blood test or not?

"Perhaps, however, the lead opinion means to say that when a blood test is conducted pursuant to consent - real consent, the kind that people provide, not legislatures - the consent can be withdrawn, but when conducted pursuant to legislatively provided consent, it cannot .... But if that is so, what possible jurisprudential theory allows a statute to make permanent what the constitution makes revocable?"



The dissent

Ann Walsh Bradley wrote a dissent, with Abrahamson joining.

"A blood draw is a particularly intrusive search," Bradley wrote. "It invades the interior of the human body and implicates interests in human dignity and privacy. To allow a blood draw without a warrant runs counter to these significant interests, not to mention United States Supreme Court precedent."

The police took Gerald Mitchell's blood without a warrant while he was unconscious, Bradley wrote, and, according to the lead opinion, this was perfectly fine because Mitchell by implication "voluntarily consented" to a blood draw and, while he was unconscious, did not revoke such consent.

"Contrary to the lead opinion, I determine that 'implied consent' is not the same as 'actual consent' for purposes of a Fourth Amendment search," she wrote. "By relying on the implied consent laws, the lead opinion attempts to create a statutory per se exception to the constitutionally mandated warrant requirement. Thus, it embraces a categorical exception over the constitutionally required consideration of the totality of the circumstances. Consent provided solely by way of an implied consent statute is constitutionally untenable."

The implied consent law does not authorize searches, Bradley wrote.

"Rather, it authorizes law enforcement to require a driver to make a choice: provide actual consent and potentially give the state evidence that the driver committed a crime, or withdraw implied consent and thereby suffer the civil consequences of withdrawing consent. A person who is unconscious cannot make this choice."

Richard Moore is the author of The New Bossism of the American Left and can be reached at www.rmmoore1.com.





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