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COA: Warrantless blood draw constitutional; OK to punish defendant for not consenting

State v. Patrick H. Dalton, 2016AP2483-CR, 7/19/17, District 2 (one-judge decision; ineligible for publication), petition for review granted 11/13/17, affirmed in part and reversed in part, 2018 WI 85; case activity (including briefs)

Patrick Dalton was badly injured in a car crash. He argues on appeal that there was no exigency justifying the warrantless blood draw that revealed his intoxication; he also argues the circuit court erred when it considered his refusal to consent to the blood draw as an aggravating factor for sentencing.

While the natural dissipation of blood alcohol is not a per se exigency, it “may support a finding of exigency in a specific case.” Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013). McNeely specifically anticipated that “exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.”

In this case, the state argues the warrant application process was delayed by a combination of factors. First, there’s the fact that the Washington County Sheriff’s Department, apparently in combination with the judges of that county, had decided on a warrant protocol involving in-person trips to the judge’s house, rather than telephone, fax or email. (¶10). Second, there are the circumstances of the crash: it was late evening, Dalton and his passenger had to be taken to separate hospitals, and the deputies had various tasks to complete before getting around to visiting Dalton in the hospital. (¶¶11-18). Finally, there were other emergencies going on around the same time; the state asserts the Sheriff’s Department didn’t have deputies to spare to expedite the warrant process. (¶19). In the state’s view, all these facts add up to an exigency because waiting for a warrant would have pushed the blood sample outside the three-hour window of automatic admissibility. See Wis. Stat. § 885.235(1g).

The court of appeals agrees, though it notes the crash here occurred in 2013, the same year McNeely was decided. Regarding the in-person warrant process, it calls it reasonable for the time, but also observes that “at some point the failure of a law enforcement agency to modify its protocol may be unreasonable.” (¶40 n.6).

As to Dalton’s second claim, the deputy read him the informing the accused form, and he refused to consent. The deputy then had a nurse withdraw Dalton’s blood anyway, which apparently happened without incident. At sentencing, the circuit court said

anybody who drives a motor vehicle in Wisconsin impliedly consents to a blood or breath draw after they’re arrested. And you were arrested, and you disregarded that, and you will be punished for that today. You don’t have the right not to consent. And that’s going to result in a higher sentence for you.


The court’s statement that “[y]ou don’t have the right not to consent” is extremely debatable. And Dalton argues 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.

Unfortunately, the court of appeals garbles its analysis of this issue by misunderstanding the notion of “consent.” The court holds that, because it has found exigent circumstances, the warrantless blood draw was constitutional–hence Dalton had no Fourth Amendment “right” to refuse it. It says that by “refusing initially to allow Stolz access to his blood, Dalton impeded the search. With each passing minute, the evidence of Dalton’s intoxication was being destroyed, and he unlawfully benefitted from that obstruction.”

Again, there is good authority that Dalton did, in fact, have the right to withdraw his implied consent. There’s no justification for the court of appeals’ claim that doing so constituted “unlawful obstruction.” More fundamentally, on a constitutional level, there’s a crucial difference between refusing to consent to a search and interfering with a search. Police regularly ask for consent to search when they might not, constitutionally, need to–for example, when they have reason to believe a vehicle contains evidence of a crime. The driver of that vehicle has the perfect right to not to “consent” to the search, if asked. But the officer can go ahead and search based on probable cause, and as long as the driver doesn’t resist, everybody–officer and driver–is following the law.

That’s essentially what happened here. The deputy asked for consent, Dalton refused to provide it, and the deputy searched anyway based on another Fourth Amendment doctrine–that of exigency. 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. So his Birchfield claim is worthy of a deeper analysis than the court gave it here.

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