Third try wasn’t a charm, and we’ve lost track of what try this is, but SCOW has finally achieved a majority decision on the constitutionality of Wis. Stat. § 343.305(3)(b), which permits the police to take the blood of an unconscious OWI suspect without a warrant. As the court of appeals held below, it’s unconstitutional.
It’s unconstitutional because, despite the “implied consent” label, the statute doesn’t require or supply the actual consent of the driver in a constitutional sense. And the court rejects the state’s argument that the statute passes muster because Mitchell v. Wisconsin says blood draws from unconscious OWI suspects will “almost always” satisfy the exigency exemption. As the court observes, while a particular search might be legal, it’s not legal because of the statute, it’s legal because of a separate constitutional doctrine. So the statute does no work except to authorize a few unconstitutional searches; it is therefore itself unconstitutional. (¶¶13-14, 43-44).
But, the court says, the statute was on the books at the time of the search, and had not been struck down. Thus, it says, the search is admissible under the good-faith doctrine as described in Illinois v. Krull, 480 U.S. 340 (1987). So, the conviction stands.
There’s a two-justice concurrence; Justice Roggensack writes that Mitchell should apply to uphold the search. She does not reiterate her previous defense of the constitutionality of the implied-consent statute, however.
An odd feature of this case: the court of appeals also sustained the conviction, relying on the good-faith doctrine. So, at least as to the outcome between the parties to the litigation, the state got exactly the result it was after: sustaining the conviction. It nevertheless petitioned for review (Prado cross-petitioned). The state argued it was entitled to do so because the lower court also struck down the statute, which was not the result it sought, obviously. The supreme court says this was a sufficiently “adverse” decision that the state was entitled to petition.