State v. Gerald P. Mitchell, 2015AP304-CR; District 2, 5/17/17, certification granted 9/11/17; case activity (including briefs)
Issue: Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.
If this issue sounds familiar that is because the court of appeals previously certified it to SCOW in State v. Howes, 2014AP1870-CR. But after granting the certification, SCOW issued a 3-way split decision that failed to decide the point definitively. See our post on SCOW’s Howes mess here. Those of you wondering how to defend these cases in the near term might find Bill Tyroler’s comment on the post interesting.
You can get the long story by reading the court of appeals certification, our Howes post, or our post on State v. Padley. But here is the short version:
The State relies exclusively on Mitchell’s “implied consent” to justify the warrantless blood draw. The State’s position is simple: Mitchell consented to have his blood drawn when he drove on Wisconsin highways and never withdrew that consent. In the State’s view, this “consent” passes constitutional muster.
Mitchell takes the position that statutory implied consent cannot operate as Fourth Amendment consent because he had “no opportunity to consent or to refuse consent.” In his view, consent occurs when an officer reads the Informing the Accused, not when a person drives on Wisconsin roads. Because he was incapable of giving affirmative consent to the blood draw, he concludes that the blood draw cannot be justified under the consent exception. Thus, though he does not quite frame it as such, his argument is in effect that the implied consent applying to unconscious individuals as described in WIS. STAT. § 343.305(3)(b) is unconstitutional—i.e., it cannot justify a warrantless blood draw. (Certification at 8-9).
Having just considered Howes, the members of the court are well aware of the important questions and various arguments pro and con. Rather than retread and repeat the same ground, we briefly explain why we believe we are compelled to certify this question again. Namely, two of our own cases—State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, and State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745—specifically addressed how the implied consent statute operates and whether it satisfies the consent exception, and both came to incompatible answers. (Certification at 9).
The certification says, with respect to Howes: “With no controlling majority view, this question remains unanswered.” That’s a plausible reading of the case, but not the only one. The OP summary of Howes has a nice breakdown of the 3 opinions (a. 3-vote “lead,” b. 2-vote concurrence, c. 3-dissent; adds up to 8 votes because Kelly is in both the lead and the dissent), so I won’t repeat it. A clear majority of five (a. and b.) support the mandate (blood draw not suppressible), but w/o an agreed rationale. Three of this group (a.) found exigent circumstances, the other two (b.), that exigent circumstances are never necessary therefore needn’t be discussed. No majority rationale can possibly be cobbled together between these two groups.
Three other justices (c.) would explicitly require exigent circumstances. As noted, one of these justices (Kelly) also joined the lead opinion, thus supporting this straightforward argument: he could hardly have joined both opinions had they been incompatible. In other words, had the lead opinion explicitly rejected the need for exigent circumstances, Justice Kelly surely would have issued a separate opinion distancing himself from that stance. Further, although the other two justices in the lead opinion did not explicitly require an exigency, they arguably accepted that requirement (if implicitly), else they would have had no need to discuss the matter at great and decisive length. Similarly, had these two votes agreed with the concurrence that Implied Consent sufficed without more, they surely would have said so.
All I’m saying is that it’s an arguable reading, certification notwithstanding, that a majority agreed that exigent circumstances is required. (With respect to the court of appeals’ rejection of a majority view — it was conclusory and being unaccompanied by any analysis, shouldn’t be accepted at face value.) “(W)hen the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court’s ultimate holding,” Lounge Management v. Town of Trenton, 219 Wis.2d 13, ¶13, 580 N.W.2d 156 (1998). True, as Howes illustrates, that marching order can be easier said than done. Still, there’s a decent argument to advance that the Howes narrowest ground of agreed-rationale requires exigent circumstance.
I can keep this conversation going …
How’s about the certification being correct, that there is no “controlling” opinion, then what? Lot of caselaw on that subject, none of which, unhelpfully, comes to mind but there’s a nice essay (42 Duke L J 419) on that subject, accessible here: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3205&context=dlj. Long and short of it is that you should be able to argue that if nothing else the plurality opinion is “persuasive,” if not exactly binding. And, as noted, there is no doubt at all that the most votes for a specific result are (anomalously, to be sure) found in the dissent; namely: 3 votes in favor of the idea that exigent circumstances are required in this context. So, then, that’s the plurality and at a minimum lower courts should take it as “persuasive.”