Issue: Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.
If this issue sounds familiar that is because the court of appeals previously certified it to SCOW in State v. Howes, 2014AP1870-CR. But after granting the certification, SCOW issued a 3-way split decision that failed to decide the point definitively. See our post on SCOW’s Howes mess here. Those of you wondering how to defend these cases in the near term might find Bill Tyroler’s comment on the post interesting.
You can get the long story by reading the court of appeals certification, our Howes post, or our post on State v. Padley. But here is the short version:
The State relies exclusively on Mitchell’s “implied consent” to justify the warrantless blood draw. The State’s position is simple: Mitchell consented to have his blood drawn when he drove on Wisconsin highways and never withdrew that consent. In the State’s view, this “consent” passes constitutional muster.
Mitchell takes the position that statutory implied consent cannot operate as Fourth Amendment consent because he had “no opportunity to consent or to refuse consent.” In his view, consent occurs when an officer reads the Informing the Accused, not when a person drives on Wisconsin roads. Because he was incapable of giving affirmative consent to the blood draw, he concludes that the blood draw cannot be justified under the consent exception. Thus, though he does not quite frame it as such, his argument is in effect that the implied consent applying to unconscious individuals as described in WIS. STAT. § 343.305(3)(b) is unconstitutional—i.e., it cannot justify a warrantless blood draw. (Certification at 8-9).
Having just considered Howes, the members of the court are well aware of the important questions and various arguments pro and con. Rather than retread and repeat the same ground, we briefly explain why we believe we are compelled to certify this question again. Namely, two of our own cases—State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, and State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745—specifically addressed how the implied consent statute operates and whether it satisfies the consent exception, and both came to incompatible answers. (Certification at 9).