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SCOW fractures over implied consent law; 3 justices say it doesn’t authorize warrantless blood draws

State v. Navdeep S. Brar, 2017 WI 73, 7/6/17,  affirming an unpublished court of appeals opinion, 2015AP1261-CR; case activity (including briefs)

By obtaining a driver’s license or operating a vehicle in Wisconsin do we automatically give the government consent to draw our blood without a warrant? A nose count reveals the answer remains “maybe.”

This 3-2-2 opinion yields a narrow 5-2  holding based on the unique facts of this case.  Specifically, the “lead” opinion (Roggensack, Gableman, Ziegler) and Part I of the concurring opinion (Kelly, R.G. Bradley) agree that Brar gave express consent to a blood draw and test while he was the police station. The dissent (Abrahamson, A.W. Bradley) would hold that he didn’t.  Basically, 5 justices see the facts of the case this way: An officer read the “informing the accused card” to Brar and asked “will you submit to an evidentiary chemical test of your blood?” Brar responded “of course.” According to those 5 justices, Brar gave “actual” consent to a blood draw. Lead Op. ¶¶30-33. Abrahamson and A.W. Bradley view the evidence differently. Dissent.  ¶¶145-146. Bottom line: Brar lost but the only point the State won is: “of course” means “of course.”

Both Kelly (concurrence author) and Abrahamson (dissent author) note that because 5 justices found “actual” consent, there was no reason for the “lead” opinion to address whether Wisconsin’s implied consent law, §343.305(2), authorizes the government to conduct warrantless blood draws without identifying an exception (think exigent circumstances) to the 4th Amendment. But it did anyway and thereby exposed a rift. OWI lawyers should pay close attention to it.

Roggensack, Gableman, Ziegler: Consent to a search need not be express; it may be inferred from context. Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016). Lead Op. ¶18. An individual’s “implied” consent, give by virtue of driving on Wisconsin’s roads is consent by conduct a la Florida v. Jardines, 133 S. Ct. 1409, 1415-16 (21013). Lead Op. ¶20. The court of appeals has incorrectly drawn a distinction between implied consent and actual consent to a blood draw. Lead Op. ¶19. Any language in Wisconsin cases suggesting that consent to a search must be given knowingly and intelligently should be withdrawn. Lead Op. ¶27.

Kelly (definitely worth reading) with R.G. Bradley joining Part I.

¶81 When the court says “consent” implied by law is just as constitutionally effective as express consent, it is saying something terribly chilling.  It is saying the legislature may decide when the people of Wisconsin must surrender their constitutional rights.  The court recognized that conducting a blood test constitutes a search within the meaning of the Fourth Amendment.  It also recognized that such searches require a warrant or a legitimate exception to the Fourth Amendment.  And it further recognized that the exceptions usually will not apply.  The court dispensed with all of this, and announced that blood tests are always available when there is probable cause to believe someone was driving in Wisconsin while intoxicated.  The scythe sharp enough to cut through all of these limitations turned out to be really quite simple, but no less surprising for that.  The legislature simply had to declare that the people of Wisconsin had agreed to it.
¶82 If this is right, the Birchfield and McNeely courts should probably feel a little sheepish for all the attention they paid to the constitutional niceties.  Especially the Birchfield court, which lauded implied consent laws, but somehow missed our insight that they dispense with both the warrant requirement and the need to consider the known exceptions to the Fourth Amendment.  “Consent” implied by law, our court says today, is no “second-tier form of consent.”  It is “constitutionally sufficient consent under the Fourth Amendment.”  The legislature need only say the people of Wisconsin waive their Fourth Amendment rights by driving, and immediately it is so.

¶83 A constitutional doctrine of this magnitude deserves considerably more attention than today’s opinion gives it.  One aspect of a more rigorous consideration would include developing and describing some limiting principles.  Today the court says the legislature properly suspended Wisconsinites’ Fourth Amendment rights when they go for a drive.  What of their Sixth Amendment rights?  Perhaps the legislature might decide it would be easier to get convictions if they also suspend the right to the effective assistance of counsel.  According to our opinion today, the legislature could simply declare that driving in Wisconsin waives that right, too.  Or the right not to incriminate oneself.  Or the right to a jury.  What principle, exactly, would prevent any of this?
¶84 Nor is there anything about this new doctrine that necessarily limits it to the context of obtaining blood tests from intoxicated drivers.  There are certain parts of the State that experience a disproportionate amount of crime.  Perhaps the legislature might decide police need greater access to homes and other buildings in such areas.  It could, according to our opinion today, adopt an “implied consent” statute in which recording a property deed comprises consent to a search of one’s property when the police have probable cause to believe the owner has been involved in a crime.  It takes very little imagination to see how this new doctrine could eat its way through all of our constitutional rights.

Abrahamson, A.W. Bradley (clear, simple logic):

¶112 The lead opinion’s and the State’s interpretation of the Implied Consent law contravenes the text of the Law.  By its plain terms, the Law does not treat the driver as having actually consented to a blood draw.  By its plain terms, the Law does not empower law enforcement officers to draw a blood sample when the vehicle is stopped.  Rather, the Law directs a lawn enforcement officer to inform the driver that a request is being made for a test, that the driver may refuse to take the test, and that the driver will face civil legal consequences upon refusal to take the test.

¶115 I conclude that the court of appeals interpreted the Implied Consent Law correctly in State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867:  The “implied consent” given by drivers on Wisconsin highways pursuant to the Implied Consent Law does not equate to “actual consent” under the Fourth Amendment.  Padley, 354 Wis. 2d 545, ¶¶38-39.

¶117 . . . The lead opinion should abide by Padley, overturn it, or distinguish it.  Instead, the lead opinion swipes at Padley with clawless paws, unnecessarily leaving Padley and the Implied Consent Law in a state of uncertainty.

Abrahamson also notes that the plurality opinion in McNeely would hold that a warrantless blood test of a driver is reasonable must be determined case-by-case based on the totality of the circumstances. ¶122. After McNeely, SCOTUS vacated a Texas judgment upholding a forced blood draw based solely on Texas’s implied consent law and remanded the case for further proceedings in light of McNeely. See Aviles v. Texas, 134 S.Ct. 902 (2014). ¶123. Meanwhile, the driver in Birchfield complied with a demand for a blood sample under North Dakota’s implied consent law, but SCOTUS did not rely on the implied consent to uphold the draw. It remanded the case so the state court could determine whether the consent was voluntary under the “totality of the circumstances.” ¶125.

¶126 Considering the text of the Wisconsin Implied Consent Law, Padley, the United States Supreme Court language in McNeely and Birchfield, the remand of Aviles, and the required totality of circumstances analysis to determine voluntary consent (which I discuss further below), I conclude that neither a Wisconsin driver’s license nor the operation of a motor vehicle in Wisconsin is a manifestation of actual consent to a later search of the driver’s person by means of a blood draw.  To draw blood without a warrant or an exception to the Fourth Amendment, the driver’s valid consent under the Fourth Amendment must be obtained at the time of the blood draw.

So, where are we? Is implied consent actual consent to a warrantless blood draw? Nobody knows. Justices Abrahamson, A.W. Bradley, and Kelley say “no”; Roggensack, Ziegler and Gableman say “yes”; and R.G. Bradley isn’t saying, as yet (she joins only that part of Kelley’s concurrence saying the court needn’t decide the issue and should decide solely based on the verbal consent at the police station).

This is a complicated area of law, so if you are working in it, you might consider our prior posts on Birchfield, McNeely, Wisconsin cases interpreting McNeely, and Padley.  Also, keep a close eye on State v. Gerald Mitchell re a warrantless blood draw of an unconscious person where no exigent circumstances existed. It will be argued and decided in the 2017-2018 term.

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