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COA: Good faith OKs blood draw whether or not implied consent statute constitutional

State v. Justin W. Paull, 2017AP1210, 8/15/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Mr. Paull was found bloody and semi-conscious after a motorcycle accident. He smelled of intoxicants and had slurred speech. Police arrested him, and he was taken to the hospital. An officer read the informing the accused form to the now-unconscious Mr. Paull, then drew his blood.

This case was on hold pending the resolution of State v. Mitchell and later Mitchell v. Wisconsin. Faithful readers will know that both SCOW and SCOTUS were both expected to address the constitutionality of implied-consent laws that authorize the taking of blood (rather than merely providing penalties for failure to consent). Faithful readers will also know that neither court did resolve this question. Here, the court of appeals holds that, even if the statutes are unconstitutional, this search–which happened in 2015, after McNeely but before Birchfield–falls under the good-faith exception. This is because the officer acted in accord with the statute as written; even if that statute is ultimately held unconstitutional (as it has not yet been), the officer was entitled to rely on it under Illinois v. Krull, 480 U.S. 240 (1987). Paull argued that the statute was so plainly unconstitutional after McNeely that no reasonable officer could have relied on it, see Krull, 480 U.S. at 355, but the court of appeals doesn’t buy it.

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