This is the supreme court’s third attempt to decide whether provisions of Wisconsin’s implied consent law comport with the Fourth Amendment. If you’ve been following along, you might have predicted the result: no majority opinion, no binding holding, and, as the lead opinion laments, a state of confusion going forward. Briefly: the lead, 3-justice opinion says “we overrule State v. Padley,” a court of appeals decision addressing a related (though not identical) issue, but it in fact does no such thing: it seems, in fact, to echo much of the discussion in Padley, and anyway, it’s a three-justice minority, and can’t overrule anything. A two-justice concurrence says the legislature can’t legislate away a motorist’s right to refuse consent to a search, but would hold that a blood draw of an unconscious OWI suspect doesn’t require a warrant anyway, despite a pretty clear statement to the contrary from SCOTUS. And a two-justice dissent also says the implied consent law doesn’t equal constitutional consent. So, just as in State v. Hager from this term, you have a result that favors the state, even though a majority of justices disagree with the state’s constitutional argument.
We began our journey with State v. Howes. That was another unconscious-motorist case, also certified. As here, the certification asked about the constitutionality of provisions in § 343.305(3)(ar)1. and 2. and (b), all of which purport to permit warrantless blood draws of unconscious motorists suspected (though not necessarily to the level of probable cause) of operating while intoxicated. There as here, five justices voted to uphold the blood draw, but there was no majority on whether the “implied consent” the statute describes is consent under the Fourth Amendment (three of the five justices decided the case on exigent circumstances grounds).
Next came State v. Brar. Brar was conscious and five justices there said he gave actual, verbal consent to the blood draw. A three-justice “lead opinion” would have also held the implied consent law independently validated the search, but the two dissenters and one of the two concurring justices (Kelly) opined that it could not do so. There was one wild card left: Justice R.G. Bradley, who joined Kelly’s concurrence, but only the part that said the court didn’t need to reach implied consent–not the part that said it was not consent for Fourth Amendment purposes.
With this decision, Justice Bradley throws in completely with Justice Kelly’s view: while the legislature can impose civil penalties on a motorist for refusing a blood draw, it cannot simply declare that, by operating a vehicle, that driver has “consented” in the Fourth Amendment sense to have his or her blood taken if the police suspect OWI.
This leaves the aforementioned three-justice “lead” in the minority on this point. As mentioned above, it purports to overrule Padley, which it cannot do, but at any rate it’s hard to discern what the practical difference might be between the lead opinion and the Padley court’s discussion. This is because, as the concurrence points out, both opinions acknowledge that a (conscious) motorist still has a choice to make even under the informed consent statute: it pretty clearly contemplates that he or she can refuse the test and suffer the civil penalties. If he or she does so, Fourth Amendment consent is absent and a warrant or a warrant exception will be required.
Turning to the concurrence, Justice Kelly refers to the reasoning of his Brar opinion, and goes on to critique the lead opinion’s reliance on the doctrine that “pervasively-regulated” activities, like driving, obviate the need for a warrant here.:
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. 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. 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.
(¶72 (citations omitted)).
A good point. But, we soon learn that the concurrence’s attitude about the eroding Fourth Amendment may change depending on who is doing the eroding. For after expressing its fear that the “regulatory state” is constantly invading, and thereby shrinking, areas where we have a reasonable expectation of privacy, it goes on to declare that an unconscious OWI suspect simply has no such expectation when it comes to the contents of his veins. This is done as part of its synthesis of three SCOTUS cases: Birchfield, McNeely, and Schmerber–which, the concurrence says, add up to the rule that a blood test of an unconscious motorist is always valid. Regarding Birchfield, the concurrence says Mitchell’s “privacy interest in the evidence of intoxication within his body is no longer a factor because the ‘search incident to arrest’ doctrine is recognized exception to the warrant requirement.”
That’s a strange reading of Birchfield–where the Court, balancing a motorist’s privacy against the needs of law enforcement, held that a breath test is valid as a search incident, but a blood test–because it involves a greater invasion of privacy–is not. You’ll search that opinion in vain for any hint that this result arises from the notion that an arrested OWI suspect has no privacy interest in his or her own blood.
And there’s a bigger problem still: Birchfield‘s express statement about blood draws from unconscious motorists:
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.
136 S. Ct. at 2184-85 (emphasis added).
To this, the concurrence replies that Birchfield‘s “central logic is actually self-contradictory” which, it says, frees a lower court to follow one strand or another of that logic.
In the end, the state of the law remains unclear, as there’s no majority of justices for any doctrinal approach. So, we may be seeing another one like this some time soon.