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SCOTUS to decide (in a Wisconsin case!) whether “implied consent” is constitutional consent

Gerald Mitchell v. Wisconsin, USSC No. 18-6210, certiorari granted 1/11/19

Question presented:

Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Decision below: State v. Mitchell, 2018 WI 84, __ Wis. 2d __, 914 N.W.2d 151.

USSC Docket

Scotusblog page (including links to briefs and commentary)

This is a question our state supreme court has thrice considered and thrice failed to construct a majority on: can the “implied consent” statute supply consent in the Fourth Amendment sense, such that a warrant isn’t required for a blood draw? In Wisconsin, the question only arises where a suspect driver is unconscious or otherwise too incapacitated to respond to the “informing the accused” spiel–that’s the only circumstance in which the statute flatly authorizes blood draws, rather than simply providing civil and evidentiary penalties for refusing one. But as the cert petition notes, other states’ statutes (at least, as interpreted by those states’ appellate courts) permit blood draws in other sets of circumstances, so the high Court’s decision may have broader reach.

Mitchell’s case, like the preceding two–Howes and Brar–fractured SCOW such that no law was made. This prompted the court of appeals recently to certify yet another unconscious-motorist case, in an attempt to get a resolution to this recurrent question. It appears now that that certification–along with who knows how many other pending appeals–will instead await SCOTUS’s pronouncement on Wisconsin’s statute.

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