For nearly 50 years, the law governing the acquisition of chemical test evidence from drivers suspected of operating while intoxicated (OWI) in Wisconsin was relatively static. Under the implied consent law (ICL), those venturing onto Wisconsin’s highways were deemed to have impliedly consented to a chemical test of their blood or breath whenever police had probable cause to believe they had committed an OWI-related offense. Suspects were read the ICL warnings (that is, the Informing the Accused Form), and then asked to submit to a breath test, a blood draw, or both at the arresting officer’s election.
If they agreed and the chemical test revealed an alcohol level over the legal limit, they would be issued a companion prohibited alcohol concentration (PAC) charge, exposing the suspect to the same penalties as the OWI charge. If they refused, they would be charged with an ICL violation, commonly known as “a refusal.” Thereafter, police would have the option of directing a warrantless blood draw with or without the subject’s consent. Warrantless blood draws of this nature became increasingly common over the years, especially in OWI criminal cases.
Recent developments in the law, however, have challenged and upended this conventional approach, both in the field and in the courtroom. This article unravels what is becoming a rather tangled area of the law. It begins by examining the birth of the warrantless blood draw in OWI cases and follows it through its expansion and ubiquitous use in Wisconsin.
The article then examines a recent U.S. Supreme Court decision – Missouri v. McNeely1 – that has significantly curtailed the practice. Next is a review of Wisconsin Supreme Court opinions that have muted the impact of McNeely and law enforcement changes that have adapted to it. The focus then turns to a 2016 Supreme Court decision, Birchfield v. North Dakota,2 that draws a sharp distinction between breath tests and blood tests for Fourth Amendment purposes and its potential impact on OWI laws in Wisconsin. Discussed last are very recent Wisconsin Supreme Court decisions that threaten to render McNeely practically obsolete, thereby leaving the future of warrantless blood draws in Wisconsin even more uncertain.
The Police Are After Blood Evidence
Good police work requires finding and collecting evidence of criminal activity. In the public realm, police carry out this important task with relatively unfettered abandon. There is a sphere of privacy, however, that police may not penetrate unless they play by the rules that courts have established to give meaning to the Fourth Amendment. To give teeth to those rules, courts will generally apply “the exclusionary rule” and suppress any evidence obtained in derogation of Fourth Amendment protections, making it unavailable for prosecuting the suspect.3
Rex R. Anderegg, U.W. 1989, is a sole practitioner at Anderegg & Associates and manages the firm’s Milwaukee office. The firm’s emphasis is in criminal and traffic defense, as well as appellate practice and procedure.
A suspect’s blood, no less than a suspect’s home, may conceal evidence of a crime, and smart police work will include finding lawful ways to circumvent the privacy barrier that protects it. While the same could be said of a suspect’s breath, breath cannot reasonably be extracted against a subject’s will, and so this article focuses primarily on blood tests.
Police may be interested in a suspect’s blood for a variety of reasons, but by far the most common is the investigation of OWI-related offenses. Blood draws have become particularly prevalent in recent years due to the proliferation of drivers operating under the influence of prescription drugs or other controlled substances, neither of which can be detected or captured by breath tests.
That a police-directed blood draw from a nonconsenting OWI suspect constitutes a “search and seizure” within the meaning of the Fourth Amendment has been clear since at least 1966, when the Supreme Court decided Schmerber v. California.4It has, in fact, been described as a most intrusive form of search.5 The estimated 10 percent of the population suffering from “needle phobia” (a condition recognized in 1994 by the DSM-IV) would agree. In either event, blood lies firmly within the sphere of privacy that police are not supposed to penetrate except in full conformity with Fourth Amendment principles. In general terms, this means a search warrant issued upon probable cause is a prerequisite to a lawful invasion of the human body.
Like most general rules, however, the warrant requirement has exceptions; indeed, it is uniquely pockmarked with them. The most common – the suspect’s consent – accounts for most warrantless blood draws. No warrant is required for any search to which a suspect consents.
Basics of Implied Consent. In OWI cases, the vast majority of chemical tests will be the end-product of a special form of consent: implied consent. The ICL provides that as a conditionof receiving operating privileges and then using Wisconsin’s highways, drivers are deemed to have impliedly consentedto chemical testing whenever law enforcement officers have probable cause to believe they have committed an OWI-related offense.
To keep this implied consent operative when it is most needed, the legislature has prescribed consequences for OWI suspects who withdraw their consent (that is, “refuse” a chemical test). These includelonger periods of driver’s license revocations and lengthier waiting periods for occupational licenses, among others. Moreover, a refusal can be used at a trial on the underlying OWI charge to prove consciousness of guilt.6
However, this has not deterred a significant number of OWI suspects who still run the gauntlet and refuse a chemical test. Such could appear, at first blush, to be a wise strategy for those OWI suspects facing criminal OWI charges (for example, a second or subsequent offense). After all, unlike a criminal OWI conviction for which jail time is mandatory, a refusal conviction is a noncriminal offense.
Because OWI suspects can testify and soften the meaning of their refusals with innocuous explanations (for example, “I’m just afraid of needles”), a defendant might prefer trying to persuade jurors he or she was not trying to hide incriminating evidence to facing chemical test evidence scientifically establishing an alcohol level above the legal limit.7
Such chemical test evidence, after all, is particularly probative. It gives rise not only to a legal presumption of intoxication but also to a separate PAC charge, which also implicates a mandatory jail sentence. As will be seen, however, this generally will not prove to be an efficacious strategy. Before turning to the pitfalls of such a strategy, a brief detour to examine whether OWI suspects have a right to refuse a chemical test will prove useful.
If There Is a Right to Refuse, Better to Refuse the Right
The Wisconsin Supreme Court recently telegraphed a disinclination to recognize a “right” to refuse a chemical test. In State v. Lemberger,8 the supreme court held that a prosecutor is free, at trial, to construe a refusal as a confession of impairment (that is, consciousness of guilt) without violating any particular “right.” Lemberger discussed cases holding OWI suspects have neither a statutory nor a constitutional right to refuse a chemical test. It also addressed a trio of appellate court cases that had intimated such a right under article I, section 11 of the Wisconsin Constitution.
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Rex R. Anderegg, Anderegg & Associates, Milwaukee office.
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One thing Lemberger did not do, however, was definitively answer the question. The issue before it was much narrower: whether defense counsel’s failure to object to the state’s effective use of the refusal at trial constituted ineffective assistance of counsel. Lemberger ruled the failure was not ineffective assistance because defense counsel had been faced with an unsettled legal question, and thus there was no clear duty to act.
A concurrence, however, thought too broad the idea that OWI suspects have no constitutional or statutory right to refuse a breath test and opined that such a pronouncement would veer toward the misleading. This concurrence thought it more prudent and accurate to simply say there is no right to refuse without consequences. While this question may seem largely academic, it will be discussed below because it is closely intertwined with the lawful scope of police action in the wake of a refusal.
The Urgency of Getting Blood
Returning to those suspects who prefer refusal consequences to allowing police access to more probative evidence of impairment, such a gambit has, since at least 1966, been risky business. In that year, another important exception to the warrant requirement – probable cause and exigent circumstances – took center stage in OWI cases, and a new era dawned when refusals were increasingly met with forced blood draws.9
The opening act was the Supreme Court decision in Schmerber, in whichthe defendant had been arrested for a misdemeanor drunk-driving offense after an accident that led to his transport to a hospital, where the arresting officer, roughly two hours later, directed a physician to draw blood over the defendant’s objection. Schmerber held that use of the blood test results at trial did not violate the defendant’s Fourth Amendment rights. The Schmerbercourt reasoned the officer had probable cause to believe the defendant’s blood contained evidence of a crime and was faced with exigent circumstances.
The urgency arose from the fact that any delay attendant to obtaining a warrant threatened the destruction of the evidence, as the percentage of alcohol in a person’s blood begins to diminish shortly after drinking stops. In other words, the time needed to investigate the accident scene and bring the accused to the hospital left insufficient time to seek out a magistrate and secure a warrant, because all the while alcohol was being metabolized from the suspect’s blood.
An OWI suspect’s refusal to consent to a chemical test was also the backdrop for a 1993 landmark decision by the Wisconsin Supreme Court – State v. Bohling10 – which greatly expanded the scope of this exception in OWI cases. By that time, Wisconsin, like most states, had adopted the ICL to deter suspects from refusing chemical tests by exposing them to certain penalties. As already noted, however, chemical test evidence is uniquely powerful, and so police are not always satisfied with simply issuing a refusal charge, particularly in a criminal case. Thus, a refusal may be met with dogged determination by police officers to still capture evidence of the suspect’s blood alcohol content.
Such was the case in Bohling when the suspect’s refusal to consent to a breath test was followed by a blood draw performed without the suspect’s consent. The Bohling court addressed the admissibility of blood test results under such circumstances and, relying on Schmerber, cast the broadest of nets. It ruled that a per se exigency existed in all cases in which OWI suspects refuse to provide a blood or breath samples, reasoning the delay in getting a search warrant would always result in the loss of evidence as alcohol metabolizes from the blood. Consequently, assuming probable cause to believe a suspect’s blood contained evidence of a crime, law enforcement could always force a blood draw from the suspect, provided it was done in a reasonable manner.
The U.S. Supreme Court Goes Bohling and Rolls a Strike
Such was the state of blood testing in OWI enforcement in Wisconsin for the ensuing two decades. In 2013, however, the landscape changed dramatically with the Supreme Court’s decision in Missouri v. McNeely,11 which brought Bohling squarely within the Court’s crosshairs. In McNeely, the Supreme Court ruled unconstitutional the idea that a per se exigency always justifies warrantless blood draws just because a properly arrested OWI suspect refuses to submit to chemical testing.
Bohling caught the Supreme Court’s eye and was the primary foil for its analysis of the issue. The Supreme Court noted that Wisconsin, and other states, had viewed Schmerberas capable of two different interpretations: 1) rapid dissipation of alcohol in the bloodstream ipso facto constitutes a sufficient exigency for a warrantless blood draw following a lawful arrest for a drunk-driving related crime; or 2) rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and the lapse of two hours until arrest, constituted exigent circumstances for such a blood draw under those particular facts.
The court in Bohling, of course, had found the former interpretation more reasonable, but the McNeely court noted it erred when it did so. Abrogating Bohling, in McNeely, the courtruled that instead of a per se exigency, each case must be decided on a case-by-case basis.
While the impact of McNeely on OWI enforcement in Wisconsin has been significant, such is not because it has altered the actual outcome of many cases. Even in cases in which challenges to the legality of Bohling’s blanket rule were still in the judicial pipeline when McNeely was decided, two Wisconsin Supreme Court decisions reminded lawyers that the exclusionary rule also has its exceptions.
In both State v. Kennedy12 and State v. Foster,13 the supreme court dutifully applied McNeely and concluded that while police had probable cause to believe those OWI suspects’ blood contained evidence of a crime, the previous Bohling paradigm on which they had relied was unconstitutional. For both defendants, however, this was a pyrrhic victory because the court went on to rule that, because of the “good faith doctrine,” evidence of the blood test results would not be excluded at trial. That doctrine holds that when an officer relies, in good faith, on applicable law (Bohling) at the time of the action under scrutiny (automatic warrantless blood draw), application of the exclusionary rule would not serve the rule’s main purpose, which is to deter police misconduct.14
Practical Effects of McNeely. Nor will McNeely, given law enforcement’s nimble updating of its protocols, alter the outcome of many future cases. As any lawyer who takes OWI cases will tell you, McNeely has given rise to the widespread use of after-hours, on-call, duty judges who review electronically transmitted stock applications and affidavits for search warrants hastily prepared by law enforcement agencies. If necessary, testimony can be taken by telephone, and the resultant search warrant is delivered with the touch of a button. These systems allow for quick access to search warrants, thereby facilitating warranted blood draws.
If anything, McNeely may have made things worse for defendants. In this practitioner’s experience, some prosecutors, presumably to dissuade OWI suspects from taxing their county’s duty judges, have refused to dismiss any refusal that provokes a search warrant. This outcome, if compounding an OWI conviction, is worse for defendants because of the special consequences associated with a refusal.
In the Bohling era, when a putative per seexigency allowed police to simply draw blood without bothering a judge, it would have been hard to find a prosecutor not willing to dismiss a refusal charge in exchange for a plea to the underlying OWI charge. Now a plea deal for a defendant who woke up the duty judge by refusing a chemical test may require the defendant to plead guilty to the refusal, and endure those additional consequences, rather than negotiating an outright dismissal of that charge.15
Although it appeared this area of the law might stabilize after McNeely, it has instead become more unsettled, and more potential changes loom on both legislative and judicial horizons. One Supreme Court decision last year invites legislative action.
In Birchfield, the Court addressed a trio of cases emanating from states that, unlike Wisconsin, criminalize refusals to submit to chemical tests. Two cases involved criminal punishment for refusing a breath test and a blood test, respectively, while the third involved a blood draw to which the defendant ostensibly “consented” but only under the coercive circumstances of facing incarceration for refusing. In all three cases, the issue was the same: whether motorists lawfully arrested for drunk driving may be criminally penalized for refusing to take a test measuring the alcohol in their breath or blood. Interestingly, Birchfield deemed criminal punishment permissible for refusing a breath test, but not a blood test.
Birchfield analyzed the issue from the standpoint of whether such searches were exempt from the warrant requirement under yet another Fourth Amendment exception – “incident to arrest” – which, it noted, applies categorically, rather than discretely, as McNeely had held for the “probable cause and exigent circumstances” exception.
McNeely has given rise to the widespread use of afterhours,
on-call, duty judges who review electronically
transmitted stock applications and affidavits for search
warrants hastily prepared by law enforcement agencies.
Birchfield recognized a long, common-law history of allowing police to search suspects incident to a lawful arrest. The issue thus turned on whether police could compel motorists, as a search incident to arrest, and upon pain of criminal prosecution, to submit to the taking of a breath or blood sample without a warrant. Only if such warrantless searches comported with the Fourth Amendment could the state criminalize the refusal to comply, just as it could criminalize the obstruction of the execution of a valid search warrant. The analysis ultimately turned on the degree of intrusion involved.
Birchfield discerned a world of difference between coerced breath tests and coerced blood tests. Breath tests, Birchfield noted,do not implicate significant privacy concerns. The physical intrusion is negligible and the inconvenience minimal. Moreover, they yield only a BAC reading without leaving a biological sample in the government’s possession. Thus, criminalizing a refusal to submit to a breath test is not unreasonable.
Blood tests, by contrast, are far more intrusive. They require piercing the skin and extracting a part of the subject’s body. Moreover, they leave police with a sample that can be preserved for possible discovery of additional information, leading to significantly more anxiety for the subject. Thus, to compel such an invasion upon pain of criminal prosecution is not permissible.
The Future: Coercing Implied Consent or Assuming It From Conduct
Potential Legislative Responses. The dichotomy created by Birchfield invites the Wisconsin legislature to consider criminalizing a refusal to take a breath test. Presumably, criminal penalties for such a refusal would engender greater compliance, thereby reducing the need for middle-of-the-night search warrant procedures and the attendant expenditure of resources. Moreover, knowledge that a suspect can face criminal conviction and punishment for a refusal could lessen the perceived need for a PAC charge and tip the cost-benefit analysis toward bypassing a blood draw.
Of course, in more egregious cases, or when controlled substances are also suspected, police could still revert to the search warrant protocol. Such a resource-driven assessment could elevate the breath test as the preferred primary test, at least when alcohol is the primary suspect.
Potential Judiciary Responses. Even more is afoot on the judicial front: two recent Wisconsin Supreme Court decisions raise the possibility that implied consent may really be actual, constitutional consent “by conduct” in disguise. In State v. Brar,16 that idea was embraced by the lead opinion, authored by Chief Justice Roggensack, who rejected any notion that “implied consent” is a lesser form of consent than consent by implication or conduct, which, the Chief Justice noted, is constitutionally sufficient under the Fourth Amendment.
By opining that the mere act of driving on Wisconsin’s roads constitutes “actual consent by conduct” and withdrawing any language that would require consent to be given “knowingly or intelligently,” the lead opinion in Brar would reopen the door to automatic warrantless blood draws that McNeely had seemingly closed. This approach fits hand-in-glove with the idea that there is no “right” to refuse a chemical test. Recognizing a “right” to refuse would undermine the idea that actual consent can be inferred from the mere act of driving on Wisconsin’s roads.
The lead opinion, however, did not represent a majority of the court. A concurring opinion by Justice Kelly, joined by Justice Rebecca Grassl Bradley, appears hostile to implying actual consent by the conduct of driving and frowned on venturing into that realm on a factual record that established the defendant’s affirmative and articulated consent.
A dissenting opinion by Justice Abrahamson, joined by Justice Ann Walsh Bradley, squarely rejected any supposition that either obtaining a Wisconsin’s driver’s license or driving on the state’s highways manifests actual consent to a later search of the driver by blood draw. Thus, for now anyway, this nascent McNeely end-around has not been enshrined in Wisconsin law, but it is on the coach’s playlist.
When asked to call that play, however, the supreme court instead called an audible. In State v. Howes,17 the supreme court accepted certification from the court of appeals to decide a question that would have largely resolved the issue: whether a related ICL provision that authorizes warrantless blood draws from unconscious drivers is constitutional. If driving on Wisconsin’s highways is tantamount to actual consent, the statute would clearly be constitutional as to unconscious drivers who before losing consciousness had manifested their actual consent.
The facts of Howe recalled Schmerber. A motorcycle collided with a deer and the cyclist was transported to the hospital with injuries. On the way to the hospital, the investigating officer learned the cyclist had three prior OWI convictions, notable because it signified his legal alcohol limit was 0.02, thereby lowering the probable-cause threshold. Unlike the defendant inSchmerber, however, the cyclist was unconscious, but the state argued this was of no import because the statute allowing his blood to be drawn merely embodied the actual consent he had already given by driving in the first place.
In either event, based on the lower probable-cause threshold, the accident, and the reports of an odor of alcohol emanating from the cyclist, the officer placed the unconscious cyclist under arrest, then read him the ITAF and directed a nurse to draw blood.
If these facts seem particularly familiar, it may be because of the recent viral video of Utah police arresting a nurse who refused police orders to draw blood from an unconscious suspect.18 No such drama occurred in Howe, however. The nurse was understandably compliant, given Wis. Stat. section 343.305(3)(b), which, unlike Utah law, presumes unconscious persons have not withdrawn their implied consent.
The drama was reserved for the courtroom where, although the constitutionality of this section was squarely before the supreme court, it never decided the issue. Instead, the lead opinion decided the case on an issue by now familiar to the reader: probable cause and exigent circumstances.
Harkening back to Schmerber, the supreme court reasoned that the investigating officer, between handling the motorcycle-deer crash scene, and then transporting the suspect to the hospital, had been left with insufficient time to obtain a warrant. For Howe, this was merely the type of individualized determination McNeely had mandated.
There was a problem, however, of great concern to the dissent, authored by Justice Abrahamson and joined by Justice Ann Walsh Bradley. The facts surrounding any urgency, the dissent noted, had not really been developed since the exigency exception to the warrant requirement had never been raised in the circuit court. This, the dissent declared, presented significant due process problems.
The dissent then went on to analyze the constitutionality of the statute and, picking up Justice Kelly on this analysis, opined that mandating warrantless blood draws from unconscious motorists is unconstitutional. And once again, the idea that the cyclist had actually consented to the blood draw merely by driving on Wisconsin’s highways reared its head, this time in a concurring opinion by Justice Gableman, joined by Justice Ziegler. In the wake of Brar and Howe, it can be said that actual consent by conduct has traction with Justice Roggensack, Justice Ziegler, and Justice Gableman.
Whether the U.S. Supreme Court would abide such an approach, however, is another matter. Birchfield offers a clue, because it rejected the idea that such an approach could coexist with criminalizing breath tests. While recognizing that consent can be inferred from conduct, Birchfield was uncomfortable with governments not only insisting on an intrusive blood test but also imposing criminal penalties for refusing to submit to such a test.19
Reasoning that there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of driving on public roads, the Court concluded that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”20 Interestingly, this suggests that suspects do possess a right to refuse a blood test, while leaving unanswered the question of whether consent by conduct might pass constitutional muster if the coercive effect of a criminal refusal is absent.
An Uncertain Road Forward
As things currently stand, the era of automatic, warrantless blood draws after a suspect’s refusal to submit to chemical testing has come to an end. It has largely been replaced with electronically transmitted search warrants that are issued by duty judges after they review applications received via the same information highway.
Whether this “new normal” is here to stay remains to be seen. While it has proven to be an effective and deft adaptation to McNeely, it also involves an expenditure of police resources that was unnecessary during the heyday of Bohling, and no doubt has caused some sleepless nights for on-call judges. Thus, there is a natural interest in eliminating this burden, or at least reducing it. Whether either branch of government can assemble the will and a majority to reshape this area of the law is anyone’s guess.
For the Wisconsin legislature, Birchfield has opened the door to making it a crime to refuse a breath test. For the Wisconsin judiciary, Birchfield’s logic and tenorraise questions about the constitutionality of inferring actual consent from conduct, while simultaneously warning that the answer is no if refusing a breath test is treated as a crime.
Analysis in this area is complicated by the peculiar overlap of statutory implied consent and the putative constitutional consent by conduct, which become operative at the same time. Complicating matters further is that both appear to share the same origin: the legislatively created scheme that driving on state highways signifies consent to a chemical test under identical circumstances.
One Wisconsin appellate court has opined that a driver who consents to a blood draw after receiving the ICL warnings has given actual, not implied, consent.21 That proposition did not fly, however, with any of the justices in Brar, including those who joined the lead opinion,which needed to disentangle consent by conduct from implied consent because under that paradigm, if allowed to stand, a refusal would constitute an unequivocal withdrawal or revocation of actual consent.
It is difficult to see where this is all headed; perhaps the answer is nowhere. At the same time, it is an issue at the intersection of law enforcement efforts to reduce the carnage on Wisconsin’s highways and the expenditure of both law enforcement and judicial resources. This presents a tempting target, and as we have seen, this area of the law has historically been relatively fluid. Defense lawyers and prosecutors would be well advised to stay tuned.
1 569 U.S. 141 (2013).
2 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).
3 Mapp v. Ohio, 368 U.S. 871 (1961).
4 384 U.S. 757, 767-78 (1966).
5 Birchfield, 136 S. Ct.at 2184.
6 The burden of proof on the probable-cause issue is lower at a refusal hearing than what would be applicable, for example, at a suppression hearing. See, e.g., State v. Wille, 185 Wis. 2d 673, 681, 518 N.W.2d 325 (Ct. App. 1994).
7 See, e.g., State v. Bolstad, 124 Wis. 2d 576, 585, 370 N.W.2d 257 (1980).
8 2017 WI 39, 374 Wis. 2d 617, 374 N.W.2d 617.
9 Use of the phrase “forced blood draw” does not necessarily mean the suspect is forcibly immobilized during the blood draw, although police could do so if the individual physically resists, provided the method used to take the blood sample is reasonable, and performed in a reasonable manner, and the arrestee presents no reasonable objection. See State v. Tullberg, 2014 WI 134, ¶ 54, 359 Wis. 2d 421, 857 N.W.2d 120. In the author’s experience, most people will allow blood to be drawn without incident if they are informed police intend to do so, though this is still referred to as a forced blood draw in common parlance.
10 173 Wis. 2d 529, 494 N.W.2d 399 (1993).
11 569 U.S. 141 (2013).
12 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834.
13 2014 WI 131, 360 Wis. 2d 12, 856 N.W.2d 847.
14 For a recent and related discussion by the Wisconsin Supreme Court of McNeely and Bohling, and warrantless blood draws based on probable cause and exigent circumstances, albeit in a non-OWI context, see State v. Parisi, 2016 WI 10, 367 Wis. 2d 1, 875 N.W.2d 619.
15 Because McNeely demands a case-by-case analysis, there can still be circumstances when police may, constitutionally, obtain a warrantless blood draw from an OWI suspect. This might result, for example, from the unavailability of a magistrate, particularly in less populated counties, or investigative issues reasonably delaying a blood draw.
16 2017 WI 499, 376 Wis. 2d 685, 898 N.W.2d 499.
17 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812.
18 www.cbsnews.com/news/nurse-says-cop-assaulted-arrested-her-for-not-drawing-blood-from-unconscious-patient/ (Sept. 1, 2017).
19 Birchfield, 136 S. Ct. at 2185.
20 Id. at 2186.
21 State v. Padley, 2014 WI App 65, ¶ 25, 354 Wis. 2d 545, 849 N.W.2d 867.