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Splintered SCOW fails to decide constitutionality of statute authorizing blood draws from unconscious persons

State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)

The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.

A police officer directed hospital personnel to take blood from Howes, who was unconscious and being treated for injuries sustained when his motorcycle hit a deer. (¶¶4-13). The officer didn’t attempt to get a warrant, but instead relied on a provision in Wisconsin’s implied consent law allowing blood to be taken from unconscious persons. (¶¶12109). Howes challenged the evidence obtained from the blood draw, arguing that the provision of the implied consent statute the police relied on is unconstitutional. The circuit court agreed and suppressed the evidence. (¶¶14-15). The state appealed, and the court of appeals certified the issue.

The statutory provision in question occurs in § 343.305(3)(ar)1. and 2. and (b), all of which authorize police to direct blood be drawn from “[a] person who is unconscious or otherwise not capable of withdrawing consent,” if other criteria are met indicating intoxicated driving (namely, the officer detects the presence of an intoxicant, has reason to believe the person violated a traffic law, or has probable cause to believe the person is operating while intoxicated). As explained in the thorough certification (see also here and here), the basic question is whether the “consent” under the implied consent law is the kind that operates as an exception to the warrant requirement, thus relieving the police of the need to get a search warrant to obtain the person’s blood.

This matters, of course, because the long-standing per se exigency rule allowing warrantless blood draws was invalidated by Missouri v. McNeely, 133 S. Ct. 1552 (2013). After McNeely police need a warrant, or they need to establish the blood draw was justified under one of the other established exceptions to the warrant requirement. The state argues the implied consent law creates a categorical exception to the warrant requirement because drivers have consented in fact to blood alcohol testing, a position effectively rejected in State v. Padley, 2014 WI App 65, ¶¶25-27, 354 Wis. 2d 545, 849 N.W.2d 867. Howes argues that, as McNeely just reminded us, categorical or per se exceptions to the warrant requirement are disfavored, and that in the specific context of the consent exception, an inquiry into the validity of consent must always be case-by-case and can never be “categorical.”

So we have a significant issue and “muddled” case law, as set out so well in the certification (at pages 13-23). But the court doesn’t resolve the issue. Instead, the justices split into three camps in deciding this case:

  • The “lead” opinion (Roggensack, joined by R.G. Bradley and Kelly) holds that police had probable cause to arrest Howes (a circuit court ruling that Howes was not challenging on appeal) and that there were exigent circumstances that justified doing a blood draw without getting a warrant. Thus, the lead opinion holds, the circuit court’s suppression order must be reversed. (¶¶27-50, 88). The lead opinion provides no discussion whatsoever of § 343.305(3)(ar).
  • A concurrence (Gableman, joined by Ziegler) agrees the suppression order must be reversed, but not because exigent circumstances justified the warrantless search. Instead, the concurrence holds the implied consent law is constitutional and provides sufficient consent for police to get blood without a warrant from an unconscious person. (¶¶52-85).
  • A dissent (Abrahamson, joined by A.W. Bradley and Kelly) concludes the circuit court was right that the statute is unconstitutional. (¶¶134-53). Two dissenters (Abrahamson and A.W. Bradley) also strongly criticize the lead opinion for going beyond the certified (and briefed and argued) issue and sua sponte deciding the case based on an exigent circumstances analysis. Because that issue was never litigated in the circuit court, there was scant factual development on the issue, and deciding it violates Howes’s right to have notice of the issue and to address it and the basic rules of appellate review. (¶¶89-133).

The upshot: No majority decision on the constitutionality of § 343.305(3)(ar)’s authorization to take blood from an unconscious person without a warrant, and no majority agreement on whether the facts in this case (such as they were developed) constitute exigent circumstances justifying a warrantless blood draw. This might make you wonder whether you should bother read this decision, given everything else there is to do.

If you’re challenging the application of unconscious person provision, the answer is “yes,” if only to understand the arguments pro and con on § 343.305(3)(ar)’s constitutionality. The two concurring justices reason that consent for purposes of the Fourth Amendment can be implied by conduct, that Wisconsin drivers have notice they are subject to testing, and that by driving they are engaging in conduct that justifies inferring they have consented to testing. (¶¶67-84). The three justices who conclude the statute is unconstitutional don’t say a lot on the topic (¶139), but basically follow Padley. (¶¶134-51). Howes’s briefs (available here) provide additional analysis.

As to exigent circumstances, the lead opinion labors mightily to blunt McNeely, for it subtly segues from general statements about the totality of the circumstances to an insistent focus on the dissipation of alcohol, culminating in the misleading conclusion that dissipation may, by itself, “even without the presence of extraneous factors,” justify a warrantless blood draw. (¶42). This blinkered treatment of McNeely isn’t binding, but it might be cited by the state as persuasive in cases with similar facts (e.g., a PAC of 0.02; a seriously injured, unconscious driver; uncertainty about the driver’s medical condition). If the state relies on it in one your cases, it will be worth going back to McNeely itself as well as studying the dissent’s critique of the lead opinion in this case. (¶¶107-33). Pay particular attention to a central question of exigency the lead opinion basically ignores: Whether the officer had time to get a warrant. Despite the lack of litigation about exigency below, it’s clear in this case the officer did have time. How do we know this? The officer said so. (¶¶109, 115). And the circuit court said that, since McNeely, the county’s judges have arranged to quickly issue warrants by telephone. (¶133). The lead opinion’s elision of these crucial facts, and its tunnel-vision focus on dissipation, amounts to an attempt to reinstate the per se exigency rule by sleight of hand.

A final note on the lead opinion’s use of the never-before-raised exigency theory. The lead opinion misleadingly implies the circuit court decided the exigent circumstances issue without engaging in a full analysis. (¶15). But the circuit court didn’t do the analysis because the state didn’t ask it to, as the state never argued that exigency justified the blood draw. This isn’t the first time this term the court has decided a case using a rationale not litigated by the parties from the trial court on up. In State v. Weber a concurrence that constituted the deciding vote used a theory not addressed by the parties. In State v. Denny the court allowed the state to brief an issue it hadn’t raised in its petition for review and then decided the case on that issue. Even so, what happened here is striking, as the dissent says:

¶95     The lead opinion establishes the existence of “exigent circumstances” by stepping off the bench, seating itself at the counsel table as advocate for the State, and putting itself on the stand as witness for the State, thus abandoning its role as neutral decision maker. By raising and deciding the exigent circumstances exception sua sponte without giving the defendant an opportunity to present evidence or to be represented by counsel, the lead opinion violates basic concepts of due process and destabilizes the adversary system at both the trial and appellate levels.

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{ 1 comment… add one }
  • wm. tyroler March 3, 2017, 9:41 am

    As noted, “the justices split into three camps in deciding this case” (etc. re: bullet-pointed breakdowns). I don’t think a majority of 4 or more votes can be constructed on any issue. But if nothing else, there’s a plurality of 3 (Abrahamson, A. Bradley, Kelly) that would require exigent circs or warrant (as against 2 [Ziegler, Gableman] who rest on implied consent, and a separate 2 [Roggensack, R. Bradley] who are maddeningly inscrutable on the point). Maybe I’m missing something, but seems to me there’s at least an argument that this plurality, as just described, represents the holding on the issue: “implied consent” doesn’t apply to an unconscious motorist, so that a blood-draw must be supported by either a warrant or exigent circumstances.

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