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Wisconsin Supreme Court grants review in three cases to address issues arising from Missouri v. McNeely

State v. Cassius A. Foster, 2011AP1673-CRNM: Review of a court of appeals summary disposition; case activity

State v. Alvernest Floyd Kennedy, 2012AP523-CR: Review of an unpublished court of appeals decision; case activity

State v. Michael R. Tullberg, 2012AP1593-CR: Review of an unpublished court of appeals decision; case activity

Issues presented (composed by On Point)

Whether the draw of the defendant’s blood was performed without a warrant and, if so, whether the warrantless blood draw was constitutional under the U.S. Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

Whether the results of a blood draw done in violation of McNeely are admissible under the good-faith exception to the exclusionary rule adopted in State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and Davis v. United States, 131 S. Ct. 2419 (2011).

Though not formally consolidated, these three cases will be argued together because they all address the important issue of the ramifications of McNeely. Recall that until McNeely, Wisconsin (and some other jurisdictions) held that the dissipation of alcohol from the blood stream created a per se exigency that allowed police to conduct warrantless, nonconsensual blood draws. State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). In McNeely, of course, the U.S. Supreme Court held that the natural dissipation of alcohol in the blood does not constitute a per se exigency that justifies a warrantless blood draw; instead, the totality of circumstances must be analyzed to determine whether an exigency exists justifying a warrantless blood draw. McNeely133 S. Ct. at 1563.

As explained in our post on McNeely, now that Bohling is no longer good law, the police will either need a warrant for a blood draw or will have to establish that there were exigent circumstances beyond mere dissipation of alcohol. McNeely doesn’t say much at all about what might constitute exigent circumstances for a warrantless blood draw, so the decisions in these three cases will provide more guidance. The court could look to Schmerber v. California, 384 U.S. 757 (1966) (which Bohling misread as permitting a per se rule) as an example of an application of the proper test, and it may also consider the facts regarding the officer’s ability (or inability) to get a warrant quickly in the particular case. Stay tuned.

In addition, it appears that the blood draws in all three of these cases occurred before McNeely was decided. If the court determines any of the blood draws was done without a warrant and in the absence of exigent circumstances, it will also have to address whether the results of the test should be suppressed. Note that the day after the petitions in these cases were granted, the court of appeals issued a decision (recommended for publication) holding that, under Dearborn, results of a driver’s blood test should not be suppressed if they were obtained without a warrant or exigent circumstances before McNeely was decided because the arresting officer acted in good faith reliance on Bohling. See State v. William A. Reese, 2012AP2114-CR (Wis. Ct. App. Feb. 20, 2014) (unpublished). Expect the supreme court to do the same, if it reaches the issue.

Finally, both Kennedy and Tullberg raised other issues in their appeals, and Foster may well have, too. (The issues raised by Kennedy are summarized in our post on the case.) None seems worthy of review on its own, but the court may reach some or all of those issues. Clearly, the McNeely issues will be both the primary focus for the court and the reason why practitioners should keep an eye on the decisions the court issues.

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