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State v. Howes, 2014AP1870-CR, certification granted 4/7/16

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification)

This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.

As noted in our prior post on this case, the court of appeals filed a detailed, 24-page certification request. It explains that if the decision in this case affected only unconscious suspects, then it would not have certified the issue. The problem is that decision could affect implied consent law as it applies to conscious suspects, and that is due mostly to McNeely. Here is the nub of the court of appeals’ concern:

Prior to McNeely, as to both conscious and unconscious suspects, the consent exception to the warrant requirement was seldom an issue because the separate exigency exception was easily satisfied. In Wisconsin, like most other states, the dissipation of alcohol from a person’s bloodstream, by itself, had been recognized as a per se exigency justifying a warrantless blood draw, assuming other requirements were met. See State v. Bohling, 173 Wis. 2d 529, 547-48, 494 N.W.2d 399 (1993). Thus, from a Fourth Amendment perspective, this per se exigency nearly always provided a basis to proceed with a warrantless blood draw, regardless of consent.

In 2013, McNeely overrode Bohling. After McNeely, exigency must be determined case by case based on the totality of the circumstances. See State v. Reese, 2014 WI App 27, ¶¶17-18, 353 Wis. 2d 266, 844 N.W.2d 396, review denied, 2015 WI 47, __ Wis. 2d __, 862 N.W.2d 898. With this easily met per se exigency rule gone, attention turns to consent. (Certification at 13).

Regarding the unconscious suspect issue presented, the parties agree on how the implied consent statute functions to supply consent as a justification for a warrantless blood draw from an unconscious suspect. The question seems to boil down to whether courts should apply the normal case-by-case totality-of-the-circumstances test, as Howes argues, or instead conclude that the scheme is, in effect, a permissible per se exception, as the State argues. If the normal totality- of-the-circumstances test is applied, it is hard to see how the test is satisfied because the statutory scheme does not take into account the individual suspect. If the scheme amounts to a permissible per se exception, such a holding should explain why this conclusion is consistent with Fourth Amendment jurisprudence.

Regarding both conscious and unconscious suspects, this case implicates the reasoning in two court of appeals decisions, Padley and Wintlend, and related supreme court decisions. The State contends not only that Padley conflicts with Wintlend, but more significantly that the analysis in Padley is wrong in a way that affects the merits here. According to the State, and contrary to Padley, the implied consent law operates to supply consent to a warrantless blood draw for both conscious and unconscious suspects in exactly the same way. (Certification at 23-24).

For more on this issue, see our long post on Padley, which foresaw many of the problems listed above, along with a few others.

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