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  • July 06, 2016

    OWI Law: New Developments Under U.S. Supreme Court Decision

    The U.S. Supreme Court, in a decision released June 23, 2016, ruled that police must obtain a warrant in drunk driving cases before seizing blood, but not for intoximeters. In this article, criminal lawyer Marcus Berghahn explains the ramifications.

    Marcus Jens Berghahn

    Drunk driving

    July 6, 2016 – The Founding Fathers, when drafting the Fourth Amendment to the U.S. Constitution, likely gave little thought to how the issue of drunk driving (of automobiles, not horse drawn carriages) would vex our society 200 years later.

    As a result, cases involving the Fourth Amendment and drunk driving prosecutions continue to be an area where the U.S. Supreme Court must reconcile constitutional history, differing doctrines, and the practical implications of prosecuting drunk driving cases. These three themes all played out recently in Birchfield v. North Dakota.1

    The case follows where Missouri v. McNeely2 left off.  While McNeely was of great consequence to Wisconsin practitioners, application of Birchfield will be more subtle.

    Revisiting McNeely

    In McNeely, the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk. The Court held that categorically applying the exigent circumstances exception to all cases involving suspected drunk driving violates the Fourth Amendment. 

    McNeely was a big deal. The case abrogated Wisconsin precedent that was the foundation of blood evidence seized in drunk driving cases.3 After McNeely, when a motorist does not consent to the taking of blood evidence, police now obtain a judicially authorized search warrant to compel the collection of blood evidence. No longer can police rely on an exception to the warrant requirement in every case.

    McNeely did not address whether the legal tools used by states to force a motorist to submit to an alcohol test were constitutional, stating:

    As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws.  For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.4

    Marcus J. BerghahnMarcus J. Berghahn, U.W. 1996, is a shareholder at Hurley, Burish & Stanton S.C., Madison. He represents individuals accused of misconduct and criminal wrongdoing in state and federal courts. He is also an adjunct professor at the U.W. Law School, where he teaches a seminars on the Fourth, Fifth and Sixth amendments and their Wisconsin counterparts. Reach by email or by phone at (608) 257-0945.

    Most states – Wisconsin among them – rely on implied consent laws to compel motorists to submit to breath or blood testing when they are arrested for drunk driving. 

    Under this civil scheme, in Wisconsin, when a motorist refuses to submit to an evidentiary test, the motorist is subject to a civil penalty, including the revocation of their operating privilege.5 Motorists in Wisconsin are deemed to have consented to the testing of their blood, breath, or urine for alcohol concentration, and if a driver refuses to submit to a lawful request for testing, his or her driving privileges may be revoked.6

    In addition, evidence of the motorist’s refusal is admitted as evidence of intoxication at trial for a drunk driving charge.7

    Other states – Minnesota, North Dakota, among others – impose criminal penalties on the motorist when they refuse to submit to an evidentiary test. There, the motorist can be charged with a separate crime when they refuse to provide an evidentiary sample, an approach the federal government encourages.8

    Blood Draws and Birchfield

    In Birchfield v. North Dakota, the Court addresses the use of criminal penalties to compel a motorist to submit to an evidentiary sample of breath or blood.9 Birchfield adopts a bright-line rule allowing police to conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But the Court held that this exception allows only breath alcohol testing. 

    If police seek to obtain blood from the motorist, then a judicially authorized warrant is necessary. The distinction drawn between blood and breath tests is justified by the differing level of invasiveness these two tests require; exhaling into a machine makes warrantless breath tests reasonable.

    “A breath test does not implicate significant privacy concerns,” Justice Samuel Alito wrote in a majority opinion.10 For the defendant in Birchfield, the decision means that the blood draw that he was compelled to comply with under penalty of a criminal charge could not be used at trial; the evidence was obtained in violation of his Fourth Amendment rights. “[M]otorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense,” Justice Alito wrote.11

    You Might Also Like …

    What Does Missouri v. McNeely Mean for the Prosecution of Drunk Driving in Wisconsin?, WisBar InsideTrack, May 1, 2013.

    Birchfield, like many Supreme Court cases, combined more than one case on the issue for which certiorari was granted. Two cases involved blood drawn after the defendant refused to consent to an evidentiary blood draw.

    A third involved a defendant who challenged the admissibility of the evidentiary blood draw at trial as insufficiently voluntary because police gave an inaccurate recounting of the potential criminal penalties for refusal. 

    The Supreme Court held that the petitioner’s consent was premised on the erroneous assumption that the state could permissibly compel both blood and breath tests. 

    The Supreme Court noted that if petitioner did not voluntarily consent, the trial court will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, and whether the evidence is offered in an administrative rather than criminal proceeding, as both determinations will have bearing on the remedy available.12

    How Does Birchfield Impact Wisconsin Law?

    What does Birchfield mean for Wisconsin? At first glance, little. Wisconsin imposes only civil penalties for refusals, which the majority in Birchfield makes clear are not before the Court: “and nothing we say here should be read to cast doubt on them.”13

    The lawfulness of Wisconsin’s civil refusal scheme has been addressed by the Wisconsin Court of Appeals twice. Both times, the court rejected the defendants’ claims that the state’s refusal scheme renders a motorist’s consent to evidentiary testing involuntary.14 In contrast to McNeely and Birchfield, Wisconsin’s refusal scheme is based on consent, and not under the exigent circumstances or search incident to arrest exceptions to the warrant requirement.15

    The Wisconsin Court of Appeals found consent to be voluntary in both cases, noting “[t]he presence or absence of actual coercion or improper police practices is the focus of the inquiry because it is determinative on the issue of whether the consent was the product of a ‘free and unconstrained will, reflecting deliberateness of choice.’”16

    Because there was no actual coercion or improper police conduct, the defendant’s consent was voluntary, the court ruled.17


    Birchfield raises two points of interest for Wisconsin practitioners. First, the Court’s embrace of warrantless breath testing will likely buoy the use and admissibility of such testing. Second, as to challenging Wisconsin’s refusal scheme, challenges to the refusal scheme will face resistance given that the Supreme Court’s prior opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.”18

    On remand in one of the consolidated Birchfield cases, lawyers may have an opportunity to see whether courts may be receptive to challenges to noncriminal penalties for refusing to consent to an evidentiary test. But Birchfield reveals the Court’s ongoing struggle with finding a proper balance between the limits of the Fourth Amendment and the government’s authority in enforcing drunk driving laws. Historical, doctrinal, and practical forces will continue to affect this area of law as courts address whether motorists properly consented to an evidentiary test after their arrest for drunk driving.


    1 2016 WL 3434398 (June 23, 2016), available at

    2 Missouri v. McNeely, 133 S. Ct. 1552 (2013).

    3 State v. Kennedy, 2014 WI 132, ¶¶ 4-5, 359 Wis. 2d 454, 461, 856 N.W.2d 834, 837-38, abrogating State v. Bohling, 173 Wis. 2d 529, 547, 494 N.W.2d 399 (1993).

    4 McNeely, 133 S. Ct. at 1566.

    5 See Wis. Stat. § 343.305.

    6 See Wis. Stat. §§ 343.305(2) and (10).

    7 State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980).

    8 Birchfield, slip op. at 8.

    9 Justice Samuel Alito wrote the majority opinion.  Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred, but wrote that, in their view, both kinds of tests ordinarily require a warrant.  Dissenting, Justice Clarence Thomas would have held that neither test requires a warrant, because the natural dissipation of alcohol creates an exigent circumstance excusing the lack of a warrant.

    10 Birchfield, slip op. at 22.

    11 Id. at 37.

    12 Id. at 38.

    13 Id. at 36.

    14 See Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891; and State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745.

    15 “It is well established that a search is reasonable when the subject consents, e.g., Schneckloth v. Bustamonte, 412 U. S. 218, 219 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context.”  Birchfield, slip op. at 36.

    16 Village of Little Chute v. Walitalo, 2002 WI App 2011, 256 Wis. 2d 1032,1038 650 N.W.2d 891, 893.

    17 Id.

    18 Birchfield, slip op. at 36.

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