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  • January 07, 2015

    McNeely and Warrantless Blood Draws: Supreme Court Clarifies Law in Trilogy

    A U.S. Supreme Court case decided in 2013 changed the law on warrantless blood draws in Wisconsin. In a trilogy of drunk driving cases, however, the Wisconsin Supreme Court used exceptions to uphold warrantless blood draws as legal searches.

    Joe Forward

    drunk drivingJan. 7, 2015 – Before the U.S. Supreme Court decided Missouri v. McNeely1 in 2013, the dissipation of alcohol alone was a legal reason to perform warrantless blood draws on persons suspected of drunk driving. Dissipation created an exigent circumstance – a situation in which evidence was being destroyed as time allowed alcohol to dissipate – and exigent circumstances allow police to perform searches without obtaining a warrant.

    That was the law in Wisconsin for 20 years before McNeely, which determined that the dissipation of alcohol cannot be the only reason that creates the exigent circumstance. Under McNeely, police cannot conduct warrantless blood draws unless the “totality of the circumstances” create the need to conduct the draw before obtaining a warrant.

    In a trilogy of recently decided cases involving drunk drivers, the Wisconsin Supreme Court noted that McNeely applied but still upheld warrantless blood draws. This article explains the decisions in State v. Foster,2 State v. Tullberg,3 and State v. Kennedy.4

    The Good Faith Exception Applies

    In both Foster and Kennedy, the majority noted that McNeely applies retroactively to the cases because the cases were pending when McNeely was decided in 2013. However, the majority ruled that the “good-faith exception” to the warrant requirement applied.

    The good-faith exception, recognized in Wisconsin, allows police to rely on settled legal precedent that exists at the time of the search if done so in good faith, even if a change in law renders the search illegal through retroactive application.

    In 2009, Tomah police clocked Cassius Foster driving 50 miles per hour in a 30 mile per hour zone. When they stopped him, he showed signs of intoxication, including glassy, bloodshot eyes and slurred speech. He told the officer he drank a couple beers.

    The officer conducted field sobriety tests and Foster failed all three. He was arrested and transported to the nearby hospital for a blood draw, which Foster refused. At the time, warrants were not required for blood draws on suspected drunk drivers because time was a factor in preserving evidence of alcohol in the bloodstream.

    The blood draw took place about an hour after the initial traffic stop and showed a blood-alcohol level of .112. The state charged Foster with operating while intoxicated (OWI), sixth offense. A jury convicted Foster, who had OWIs in other states.

    After McNeely came down, the Wisconsin Supreme Court granted review of Foster’s appeal to decide whether the warrantless blood draw was constitutional.

    The majority, in an opinion by Justice Patrick Crooks, said McNeely applied to Foster’s case and the search was unconstitutional – the state failed to meet its burden to prove that police relied on other exigent circumstances besides the dissipation of alcohol.

    However, the majority upheld the conviction based on the good-faith exception, because police reasonably relied on settled precedent at the time of the search.

    “We agree with the State and hold that the good faith exception to the exclusionary rule applies because the police conducted the search and seizure of Foster’s blood in objectively reasonable reliance on the clear and settled precedent of Bohling,” wrote Justice Crooks, referring to State v. Bohling, 173 Wis. 2d 529 (1993).

    Foster argued for a bright line rule that would prohibit the good-faith exception in cases involving bodily intrusion searches, but the supreme court majority declined.

    “While intrusions into the human body implicate significant privacy concerns, they are permissible under reasonable circumstances,” Crooks wrote. “Consistent with this principle, Bohling authorized the search and seizure of Foster’s blood.”

    Chief Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley dissented in Foster, concluding that the appeals court improperly accepted a no-merit report on Foster's claim that his trial counsel was ineffective. The dissenters agreed that the good-faith exception applied under Wisconsin precedent, but voiced reluctance.

    “As in Dearborn, I conclude that admitting evidence seized unconstitutionally undermines the integrity of the judicial process,” wrote Chief Justice Abrahamson, referring to State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.

    Same Result in Kennedy

    The result was the same for Alvernest Kennedy, who was arrested and convicted for homicide by intoxicated use of a motor vehicle. Kennedy, who had a blood-alcohol level almost three times the legal limit, killed a woman who was crossing the street.

    Kennedy showed signs of intoxication before police arrested him and transported him to a hospital for a blood draw, which occurred about three hours after the accident and registered a .216. A jury convicted Kennedy after his motion to suppress was denied.

    Kennedy argued that police lacked probable cause to arrest him because they did not perform a field sobriety test, and police needed a warrant for the blood draw. The majority, in an opinion by Justice Michael Gableman, noted that field sobriety tests aren’t necessary if police have other reasons to suspect a person of drunk driving.

    The majority also noted that McNeely applied to Kennedy’s case, since the case was pending when McNeely was decided, but applied the good-faith exception. It assumed the search was unconstitutional because the state basically conceded that it was.

    However, applying the good faith exception, the majority concluded that police “acted in objectively reasonable accord with the clear and settled Wisconsin precedent existing at the time the warrantless investigatory blood draw was performed on Kennedy.”

    Tullberg and Exigent Circumstances

    In Foster and Kennedy, the majority relied on the good-faith exception to affirm convictions in cases that were pending when McNeely was decided. In those cases, the state could not or did not prove exigent circumstances beyond dissipation of alcohol.

    Tullberg, however, provides an example of the analysis that may apply in cases when the good-faith exception is inapplicable, including cases in which warrantless blood draws occurred after April 17, 2013, the date the McNeely decision was released.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    In Tullberg, the majority ruled that the dissipation of alcohol in Tullberg’s bloodstream was not the only reason to justify the blood draw on the basis of exigent circumstances.

    In 2009, four people were riding in Tullberg’s truck in Shawano County when it ran off the road and flipped several times before coming to a stop against a tree. One person had been riding in the truck bed. Three others were in the truck’s cabin.

    Tullberg and two other occupants, Ashley Miller and Christopher Malueg, searched for the fourth occupant, Matthew Alf, for a span of up to 15 minutes but later left the scene.

    Tullberg’s brother picked them up, and his mother transported them to the hospital. Tullberg’s father reported the accident and went to the scene to help police, which responded to the accident site and found Alf pinned under the vehicle. He was dead.

    Police were informed that Tullberg and Miller were at the hospital. A deputy arrived there 30 minutes later and interviewed Tullberg. He admitted drinking and showed signs of intoxication, including glassy and bloodshot eyes. He said Alf was the driver.

    However, an investigation suggested that Tullberg was driving. For one, Tullberg showed physical signs of airbag residue, and only the driver-side airbag was deployed.

    Police also concluded that Alf could not have been driving since he was ejected from the vehicle, and confirmed that Alf did not have airbag residue on him. The deputy concluded that he had probable cause to believe Tullberg was the driver.

    More than two-and-a-half hours after the accident, the deputy told medical staff to draw Tullberg’s blood for testing. The test showed that Tullberg’s blood-alcohol level was above the legal limit at 0.14. After Tullberg heard the charges against him, he pleaded not guilty and later moved to suppress the blood draw as an unlawful search.

    Now or Never Moment

    A circuit court concluded the exigent circumstances justified the warrantless blood draw. A jury later convicted Tullberg of homicide by intoxicated use of a motor vehicle and other related charges. An appeals court upheld the convictions.

    A supreme court majority affirmed, despite Tullberg’s argument that McNeely required a different result. Tullberg, who had fled the scene and caused delay, was not arrested before police instructed the hospital staff to draw his blood. Tullberg argued that a suspected drunk drivers must be arrested before their blood can be drawn.

    However, the majority noted that arresting him was not a prerequisite because there was probable cause to believe he drove intoxicated – even though a field sobriety test was not performed – and exigent circumstances justified the warrantless blood draw.

    “We conclude that, under the totality of the circumstances, the draw of Tullberg’s blood was justified by exigent circumstances,” wrote Justice Annette Ziegler for the majority.

    “A reasonable law enforcement officer, confronted with this accident scene and these circumstances, would reasonably conclude that the totality of the circumstances rendered a warrantless blood draw necessary.”

    The majority noted that Tullberg’s actions delayed the investigation because he fled the scene and misled police about whether he was the driver, which required further investigation. Police also knew that Tullberg was about to undergo a CT scan, which could have delayed the blood draw by hours or more based on the CT scan results.

    Since blood draws generally need to be taken within three hours of an accident to be reliable and admissible in court, the deputy needed to act possibly now or never.

    “This sort of ‘now or never’ moment is the epitome of an exigent circumstance,” wrote Justice Ziegler, while noting that a “now or never” moment is not always required for police to legally obtain a warrantless blood draw under McNeely.

    “[E]xigent circumstances justify a warrantless blood draw if delaying the blood draw would ‘significantly undermin[e] [its] efficacy,’” explained Justice Ziegler, citing McNeely. “The ‘now or never’ moment in the present case quite clearly meets that test.”

    Chief Justice Abrahamson, joined by Bradley, concurred in Tullberg but raised questions about a “troublesome” area not reconciled by the trilogy: whether, when determining if a warrantless blood draw is constitutional, police must have probable cause to believe the blood would furnish evidence of a crime or whether there must be “a clear indication that the blood will produce evidence of intoxication.”


    1 133 S. Ct. 1552 (2013).

    2 2014 WI 131 (Dec. 26, 2014).

    3 2014 WI 134 (Dec. 26, 2014).

    4 2014 WI 132 (Dec. 26, 2014).

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