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SCOW’s decision in Randall is binding on whether consent to blood test can be withdrawn

State v. John W. Lane, 2019AP153-CR, District 4, 10/17/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Lane consented to a blood draw after his OWI arrest, but a week later wrote the State Hygiene Lab saying he was revoking his consent to the collection and testing of his blood. The authorities tested the blood anyway. Lane’s challenge to the test result is foreclosed by State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223.

Lane argues Randall doesn’t fully address the issue because there wasn’t agreement on the legal grounds between the lead and concurring opinions for why a driver can’t withdraw previously given consent. But that’s not required to produce a binding, majority ruling; what’s required is that “a majority of the participating judges … agree[] on a particular point ….” State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995). “Both the lead and concurring opinions in Randall agree that a defendant who has been arrested for intoxicating driving, and whose blood is drawn after the defendant’s consent, does not have a reasonable expectation of privacy in the alcohol content of blood.” (¶9). Therefore, Randall establishes that the Fourth Amendment doesn’t bar testing a blood sample taken from a defendant arrested for OWI who consented to the blood draw but then withdraws consent..

Lane attempts to distinguish his case from Randall because he, unlike Randall, didn’t “readily agree to the blood test,” but preferred a breath test. This attempt fails. He doesn’t argue that he did not consent; the record supports the conclusion he did; and in any event, he doesn’t explain why the factual differences change would change the result. (¶¶10-11).

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