The Court granted certiorari and consolidated three cases presenting identical questions in different factual permutations:
Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.
In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court declared that the natural dissipation of alcohol within the bloodstream is not per se exigent circumstances justifying a warrantless search. In the absence of a more-or-less blanket rule that an OWI suspect’s blood, breath and urine are always free for the taking, some motorists will have a valid Fourth Amendment right to be free of such testing. But thirteen states, Wisconsin not among them, make it a crime to refuse a chemical test after being arrested for driving while intoxicated. So, naturally, the question arises: can the government criminally punish, or even threaten to criminally punish, a person for asserting this right and refusing to be tested?
The granted cases each present the issue from a different angle: two of the defendants received criminal penalties for refusing a test (one breath and one blood) and the third submitted to a test after being informed that refusal would be a crime. The Birchfield petition lays out various justifications employed by state courts to uphold criminalizing refusals–that a chemical test is per se reasonable, that “implied consent” license requirements constitute actual consent, or that such tests are valid searches incident to arrest–and, of course, finds them wanting. The centerpiece of the defense argument is the doctrine of “unconstitutional conditions,” which “vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013).
Though Wisconsin does not criminalize refusals, it does penalize them by way of driver’s license revocations. Our court of appeals has twice rejected claims that this penalty renders a motorist’s consent to testing involuntary. Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891; State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745. The high court’s decision in these cases could insulate our state’s scheme from further challenge or go a long way toward upending it.