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SCOW to decide whether courts may impose criminal penalty where suspect refuses a warrantless blood draw

State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)

Issues:

1. Under Missouri v. McNeely and Birchfield v. North Dakota, may a circuit court impose a harsher criminal punishment because a defendant exercised his constitutional right to refuse a warrantless blood draw?

2. Whether Dalton was denied the effective assistance of counsel where his attorney failed to move to suppress blood evidence on grounds that police lacked exigent circumstances to forcibly draw his blood without a warrant?

As noted in our post on the court of appeals opinion, the circuit court told Dalton: “You don’t have the right not to consent.” That statement was extremely debatable. Dalton argued that Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) means the government may not criminally punish a person for withdrawing his implied consent–including by increasing his sentence. The Fourth Amendment, of course, entitles a person to refuse to consent to a search–so the exercise of that right should not lead to criminal penalties. The court of appeals garbled its analysis of this issue by misunderstanding the notion of “consent.” It held that because it found exigent circumstances, the warrantless blood draw was constitutional–hence Dalton had no Fourth Amendment “right” to refuse it. However, the fact that the officer had another constitutional route to get the blood does not mean Dalton was obligated to consent. He still had the right not to.

The second issue is also very interesting. Missouri v. McNeely, 133 S. Ct. 1552 (2013), holds that police must obtain a warrant for a blood draw unless a true emergency prevents them from doing so. Dalton asserts that within minutes of arriving on scene, police had enough information to apply for a warrant to draw Mr. Dalton’s blood. With five police officers on scene and ten to fifteen firefighters assisting with traffic and safety, police instead prioritized other matters, including examining the scene, speaking with witnesses, and waiting for a car to be towed.  Dalton asks SCOW to decide  how McNeely applies to this situation.

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