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    Wisconsin Lawyer
    November 08, 2019

    The Quest for a Warrantless OWI Blood Draw

    Earlier this year, the U.S. Supreme Court announced a general rule that a law enforcement officer can proceed without a warrant when seeking to do a blood draw on an unconscious driver. But the Court avoided an issue hotly debated by Wisconsin Supreme Court justices, whether driving on the state’s highways is implicit consent to driving-related searches.

    Rex R. Anderegg

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    There can be little question that drunk driving is a problem deserving the attention of everyone in Wisconsin. In 2017, according to the National Highway Traffic Safety Administration, 31 percent (190) of motor vehicle traffic fatalities in Wisconsin involved an alcohol-impaired driver.1 Prosecuting operating while intoxicated (OWI) cases is therefore serious business, and in that service, the evidentiary gold standard is the blood test. This is especially so when a controlled substance, not alcohol, is the suspected intoxicating agent at play.

    At the same time, a blood draw is a highly invasive encroachment on the sphere of privacy protected by the U.S. Constitution’s Fourth Amendment. Indeed, in Birchfield v. North Dakota,2 the U.S. Supreme Court noted that blood draws are among the most intrusive of all searches.

    Warrantless Blood Draws

    There has always been tension between society’s dual interests in effectively fighting crime and in preserving individual privacy. How much personal privacy are people willing to relinquish to address a known societal problem? More pointedly for purposes of this article, under what circumstances, to facilitate OWI law enforcement, are people willing to allow law enforcement officers to invade their bodies to collect blood evidence without first obtaining a warrant? The Fourth Amendment requires a warrant, which in this context means that skin should be punctured, and biological material removed, only after a neutral and detached magistrate has determined there is probable cause to do so.

    Rex R. AndereggRex 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.

    Of course, there are exceptions to the warrant requirement. One such exception – “exigent circumstances” – recognizes that police can proceed without a warrant if the delay associated with getting one will cause the evidence sought to be lost. Another consideration, though seldom discussed in written decisions, is the economic cost of safeguarding the right of privacy. The process of getting a warrant taxes police and judicial resources.

    In November 2017, I reported on developments in the law surrounding the use of warrantless blood draws in OWI investigations.3 That article noted that from 1993, when the Wisconsin Supreme Court decided State v. Bohling,4 until 2014, when the U.S. Supreme Court decided Missouri v. McNeely,5 Wisconsin allowed warrantless blood draws whenever an arresting officer had probable cause to believe the motorist’s blood contained evidence of operating under the influence. During the 20-year period under the Bohling regime, a per se exigency to draw blood was assumed to arise from the fact that any delay in obtaining a warrant would allow alcohol to be metabolized from the blood. Thus, if a motorist refused to provide a breath or blood test, the arresting officer could simply direct that blood be drawn. No warrant was needed.

    In 2014, however, McNeely upended that approach by holding that Bohling’s per se exigency approach was unconstitutional. The Court declared in McNeely that each case must be decided on a case-by-case basis. Following McNeely’s abrogation of Bohling, Wisconsin law enforcement agencies put in place a protocol for obtaining electronic search warrants from on-duty judges whenever a motorist refused to consent to a chemical test. Such was the state of things in 2017, and that practice continues to this day. From this author’s perspective, the approach has worked well for law enforcement agencies, albeit at the cost of burdening police and judicial resources.

    Also in 2017, however, a move was afoot that, had it come to fruition, would have effectively restored the “good old days” of Bohling, when judges could sleep peacefully, uninterrupted by electronic requests for search warrants. A pair of 2017 Wisconsin Supreme Court cases – State v. Brar6 and State v. Howes7 – introduced the idea that the mere act of driving on Wisconsin roads might be viewed as actual, rather the implied, consent to allow a blood draw.

    Were this the law, police could simply order a blood draw (or breath test) without inviting a refusal, which is essentially what happens when police proceed under the state’s implied consent law (ICL). That process involves reading to the suspect the Informing the Accused Form (ITAF), which, while warning of negative consequences for refusing (for example, driver’s license revocation), ultimately ends with a query: “Will you submit to an evidentiary chemical test of your blood/breath.” In other words, the suspect is given the option of saying yes or no, and despite the consequences, many suspects still choose “no.”  

    Given the average person’s inclination to do whatever a law enforcement officer demands, presumably fewer refusals would arise if police officers could skip the ICL process and simply announce that they are ordering a blood draw (based on the driver’s putative actual consent). And as for those individuals bold enough to withdraw their actual consent, police could always still wake a duty judge and seek a warrant. While this idea of actual consent was embraced by only three justices, it seemed we had not heard the last word on the matter.

    Such has proven true. On July 3, 2018, the Wisconsin Supreme Court issued another pair of decisions – State v. Dalton8 and State v. Mitchell9 – both of which addressed these warrantless-blood-draw issues.

    Dalton and Lingering Questions of a Constitutional Right to Refuse a Blood Draw

    In Dalton, the defendant crashed his car into a ditch, and he and his passenger were injured. Dalton was air lifted to Froedtert Hospital in Milwaukee, and the passenger was transported to a local hospital.

    By the time a sheriff’s deputy arrived at Froedtert, Dalton’s emergency treatment was complete and nearly two hours had passed since the accident. When the deputy interacted with Dalton, he noted bloodshot eyes, a strong odor of alcohol on Dalton’s breath, and a lethargic demeanor. The deputy then arrested Dalton and read him the ITAF, whereupon Dalton refused a blood draw. Rather than seek an electronic warrant, the deputy directed a nurse to draw Dalton’s blood, believing exigent circumstances justified a warrantless search. The blood sample revealed a blood alcohol concentration (BAC) of 0.238, and Dalton eventually pleaded guilty to the OWI charge. When sentenced, the circuit court expressly relied on Dalton’s having refused the blood draw as an aggravating circumstance warranting a lengthier sentence.

    Legality of the Warrantless Blood Draw. Dalton landed in the Wisconsin Supreme Court with two issues ripe for examination. The first was the legality of the warrantless blood draw. Before McNeely, this would not have been an issue, because the mere dissipation of alcohol from Dalton’s bloodstream would have supplied the requisite exigency for a warrantless blood draw. Post-McNeely, an individual and case-specific examination was required, and the Dalton court dutifully undertook that analysis. The supreme court ultimately concluded that the specific facts presented true exigent circumstances.

    Against the backdrop of a rapidly closing three-hour window to obtain a presumptively admissible and accurate blood draw,10 Dalton’s accident, along with other events that evening, had spread law enforcement resources thin. Sheriff’s deputies needed to first tend to the medical needs of two individuals while also securing the accident scene for evidence and the safety of nearby travelers. Another deputy had to interview the passenger before his memory faded. Other deputies were busy with a different accident involving a personal injury, a fleeing driver, a vehicle in the middle of the road, and downed power poles. Still others were dispatched to an auto theft, all of which left only two deputies to patrol the entirety of Washington County. The particular facts of Dalton thus gave rise to a reasonable belief that a delay associated with procuring a warrant would risk the destruction of evidence.11

    A final issue Dalton laid bare was whether there is a constitutional right to refuse a blood test. The answer in Wisconsin, at least for now, appears to be yes.

    Whether Refusal to Submit to Blood Draw Can Be Used to Lengthen Sentence. While there was unanimity on this first issue, a fault line was exposed on the second question: whether Dalton’s refusal to submit to a blood draw could be used to lengthen his sentence. The polemic was whether doing so ran afoul of the U.S. Supreme Court’s ruling in Birchfield. Birchfield held that while it is constitutionally permissible to criminalize refusals to submit to breath tests, such is not the situation with refusals to submit to blood tests, which is what Dalton had done.

    A majority of the Wisconsin Supreme Court concluded that giving Dalton a longer sentence because he had refused a blood draw impermissibly punished him for exercising a constitutional right. That a refusal is not a stand-alone crime in Wisconsin made no difference to the majority, which noted Birchfield addressed the wider impermissibility of criminal penalties for refusing a blood test. Nor was the majority persuaded by the idea that the refusal simply reflected on Dalton’s “character,” given that such logic could be extended, for example, to the exercise of other constitutional rights such as refusing to consent to a search of one’s home or remaining silent upon questioning.12

    In two dissents, however, three justices vigorously disagreed that Dalton’s refusal had been criminalized. According to the dissents, Birchfield never defined a “criminal penalty” as a lengthier jail sentence, and consideration of Dalton’s refusal was nothing more than a proper sentencing factor. One dissent expressed concern that under the majority’s rationale, a misdemeanor second-offense OWI based solely on a prior civil conviction for refusing to submit to a blood draw could be viewed as an impermissible criminalization of a refusal.

    A final issue Dalton laid bare was whether there is a constitutional right to refuse a blood test. The answer in Wisconsin, at least for now, appears to be yes, because the existence of such a right was integral to the majority’s decision on this second issue. It was, after all, to protect that Fourth Amendment right to withdraw consent to search that Dalton could not be given a longer sentence for having exercised the right.

    Both dissents, however, vigorously disagreed with that proposition, pointing out that in South Dakota v. Neville,13 a 1983 decision, the U.S. Supreme Court stated that a person’s refusal to permit a blood draw after an OWI arrest was a matter of legislative grace, rather than a constitutional right. The Dalton majority, however, deemed Neville inapposite because it was a Fifth Amendment case. In the majority’s estimation, McNeely and Birchfield have altered the landscape and superseded Neville by examining blood test refusals in the Fourth Amendment context. Meanwhile, the U.S. Supreme Court has yet to clearly articulate a position on whether a motorist has a Fourth Amendment right to refuse a blood test.14

    Mitchell and Actual Consent in the Wisconsin Supreme Court

    The other landmark opinion the Wisconsin Supreme Court released the same day as Dalton was Mitchell, a case in which the defendant was unconscious when a warrantless blood draw was performed. The sequence of events giving rise to Mitchell began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell near a lake, stumbling and slurring his words. Mitchell was barely able to stand without the assistance of two officers.

    Jaeger decided that field sobriety tests would be useless, if not dangerous, and gave Mitchell a preliminary breath test, which registered a BAC of 0.24. Jaeger arrested Mitchell for OWI and drove him to a police station for a more reliable breath test using evidence-grade breath-testing machinery. On the way there, however, Mitchell's condition deteriorated, and by the time they reached the station, he was too lethargic for a breath test.

    Jaeger then drove Mitchell to a nearby hospital for a blood test, and Mitchell completely lost consciousness during the ride and had to be wheeled in. Nonetheless, Jaeger read the ITAF to a slumped Mitchell and, hearing no response, asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed his BAC was 0.22 about 90 minutes after his arrest. Interestingly, the state conceded that the exigency exception did not justify the warrantless blood draw, instead relying on Wis. Stat. section 343.305(3)(b), which states that unconscious drivers are presumed not to have withdrawn their implied consent.

    The U.S. Supreme Court announced that the general rule is that in situations in which a driver is unconscious, a warrant is not needed.

    Does Warrantless Blood Draw from Unconscious Driver Violate Fourth Amendment? The question for the Wisconsin Supreme Court was whether a warrantless blood draw from an unconscious driver per Wis. Stat. section 343.305(3)(b), in a situation in which the state had conceded no exigency existed, violated the Fourth Amendment. This issue was also framed as whether a state legislature can step in and supply wholesale consent on behalf of state residents, thereby effectively waiving their Fourth Amendment rights. The facts of Mitchell presented this question in its purest form because the driver was unconscious and therefore unable to either consent or refuse, and the state conceded no exigency justified the blood draw.

    The Wisconsin Supreme Court ruled the warrantless blood draw constitutional, though just as in Howes, which also involved an unconscious driver (see 2017 article), no majority holding congealed to explain the result. The lead opinion in Mitchell, authored by Chief Justice Roggensack and joined by Justice Ziegler and Justice Gableman, went in a now familiar direction. These justices reasoned that because Mitchell drove on Wisconsin roads after having consumed alcohol to the point of probable cause for an OWI arrest, Mitchell’s consent to a blood draw was not merely implied, it was actual.

    For this plurality, choosing to drive on state highways was akin to choosing to engage in certain highly regulated industries, such as selling liquor or using firearms, which, in all instances, involves voluntary consent to subject oneself to a “full arsenal of government regulation.”15 Choosing to drive on Wisconsin highways constitutes consent to a multitude of regulations, such as driving on the right side of the road. Consent to an evidentiary blood draw upon a showing of probable cause to believe one is operating under the influence is just one more regulation to which drivers submit when exercising the privilege of driving in Wisconsin. Thus, according to these justices, the consent to search was provided not by the ICL statutes per se but by Mitchell’s actual consent when he chose to drive on Wisconsin highways after imbibing enough alcohol to become intoxicated.

    A concurrence authored by Justice Kelly and joined by Justice Grassl Bradley, however, did rely on the statute presuming that an unconscious individual’s implied consent is not withdrawn, deeming it reasonable within the meaning of the Fourth Amendment. The concurrence expressly refused to travel down the road of the “pervasive-regulation” doctrine, noting that those cases allowing warrantless-inspection regimes were based on the absence of a proprietor’s expectation of privacy given the nature of the business at issue. Justice Kelly noted that “[i]f increased regulation decreases the areas in which individuals have a reasonable expectation of privacy, then the Fourth Amendment’s protections are effectively contingent on the reach of the regulatory state.”16

    Justice Kelly’s concurrence captured the conundrum when it noted that the plurality in Mitchell seemed to be of two minds on the question whether a suspect can refuse a blood test. On one hand, the plurality asserted that an OWI suspect has no constitutional right to refuse a blood-alcohol test. On the other hand, it recognized that consent voluntarily given may be withdrawn before a blood draw, with or without a statutory reminder.

    Justice Kelly hypothesized that the true import of the plurality might be that “when a blood test is conducted pursuant to consent – real consent, the kind that people provide, not legislatures – the consent can be withdrawn, but when conducted pursuant to legislatively-provided consent, it cannot.”17 Justice Kelly could not abide the idea that a statute could make permanent what the constitution makes revocable. In either event, it then appeared the U.S. Supreme Court might resolve the issue once and for all when it granted Mitchell’s petition for writ of certiorari.

    Mitchell in the U.S. Supreme Court

    The question was put to the U.S. Supreme Court when the state advocated, among other things, for the plurality’s pervasive-regulation and actual-consent doctrine. Interested observers waited with bated breath to see whether the U.S. Supreme Court would adopt that rationale, which would usher in a sea change in how the Fourth Amendment is applied in the drunk-driving context. As previously noted, were the U.S. Supreme Court to adopt the plurality’s rationale, use of the implied consent laws could largely be replaced by warrantless blood draws based on drivers’ actual consent. Given the average person’s tendency to simply comply with law enforcement directions, warrantless blood draws could again become the norm, and the halcyon days for law enforcement under Bohling could be back.

    Those pining for clarity, however, were to be disappointed when the U.S. Supreme Court ultimately decided the case on a basis the state had specifically disavowed: exigent circumstances. A plurality of the Mitchell Court held that in situations in which the driver is unconscious and thus cannot be given a breath test, the exigent-circumstances rule will almost always permit a blood test without a warrant. The Court noted that when a police officer encounters an unconscious driver, it is likely the driver will be taken to an emergency room and his or her blood will be drawn for diagnostic purposes, even if the police were not seeking BAC information.

    Moreover, police officers usually come upon unconscious drivers at the scene of an accident, where the officers’ many responsibilities (for example, attending to other injured drivers or passengers and preventing further accidents) can be incompatible with the procedures that would be required to obtain a warrant. Thus, the U.S. Supreme Court announced that the general rule is that in situations in which a driver is unconscious, a warrant is not needed. It therefore vacated the Wisconsin Supreme Court’s judgment and remanded for further proceedings on the question of whether, under the new paradigm announced, there were exigent circumstances. The decision is thus quite limited in scope because it applies only to unconscious drivers.

    The U.S. Supreme Court neither embraced nor expressly rejected the pervasive-regulation concept but ignored it altogether. Other Justices were not enamored with the unexpected direction the plurality took. A dissent authored by Justice Sotomayor (and joined by Justice Ginsburg and Justice Kagen) opined that because thestate had conceded the officers had time to get a warrant to draw Mitchell’s blood (that is, there were no exigent circumstances), such should have ended the inquiry. Justice Gorsuch dissented, viewing the case as improvidently granted because the Court had granted certiorari to decide whether Wisconsin drivers impliedly consent to blood-alcohol tests based on a state statute, only to then decline to answer that question and instead uphold Wisconsin’s law on an entirely different ground.18


    So here we are, two years later, and the waters remain a bit murky. While not yet dead, the pervasive-regulation doctrine did not resonate with the U.S. Supreme Court when the Court received the opportunity to opine on it. Of course, it was easier to dodge the issue because a majority of the Wisconsin Supreme Court had not adopted it. But given that the U.S. Supreme Court did not expressly reject the concept, the door is ajar at the state level, and with a newly constituted Wisconsin Supreme Court, we may not have heard the last of the issue.

    Also left for another day is the constitutionality of a state statute purporting to presume consent on behalf of an unconscious driver. The Supreme Court’s ruling in Mitchell appears to reduce the need for and importance of that statute because law enforcement officers’ encounters with unconscious drivers now will enjoy a sort of presumption of exigent circumstances.

    But what will be the result when a lower court finds that exigent circumstances are not present? And might that not be exactly the result on remand in Mitchell, in which there was no accident and the state, after all, conceded the absence of any exigency in the first place? Were the circuit court to find what the state has already conceded (that is, no exigent circumstances), it would likely just reaffirm its original ruling that the blood draw per Wis. Stat. section 343.305(3)(b) was constitutional. And how would the higher courts then address a Mitchell redux? The issue is likely to resurface, if not in Mitchell, then in another case. Stay tuned.

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    Rex R. AndereggMy favorite nonwork activity would have to be golfing with my kids and with three college buddies and their kids. Each year we all get together for a weekend of golfing with the object being to win “The Paxson Cup,” a most-coveted traveling trophy named after our dorm floor in Sellery B tower at U.W.-Madison. We have all remained close friends since the 1981-82 school year. It has been a life-long joy to spend time with great friends and their wonderful children.

    Rex R. Anderegg, Anderegg & Associates, Milwaukee.

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    2 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

    3 Rex Anderegg, OWI Blood Draws: An Uncertain Road Ahead, Wis. Law. (Nov. 2017).

    4 State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).

    5 Missouri v. McNeely, 569 U.S. 141 (2013).

    6 State v. Brar, 2017 WI 73, 376 Wis. 2d 685, 898 N.W.2d 499.

    7 State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812, cert. denied, 138 S. Ct. 138 (2017).

    8 State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.

    9 State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, vacated and remanded, 139 S. Ct. 2525 (2019).

    10 See Wis. Stat. § 885.235(1g).

    11 The legality of the blood draw was examined through the lens of ineffective assistance of counsel because Dalton sought to withdraw his plea on the grounds that his counsel had been deficient in failing to challenge the legality of the blood draw. The Dalton court concluded that counsel was not ineffective for failing to file a meritless motion to suppress.

    12 Birchfield was reviewed in the 2017 article, and the invitation I extended there to the Wisconsin Legislature to criminalize breath test refusals remains open, which presumably would make refusals of breath tests, at least, less frequent, with a corresponding reduction in the need for electronic search warrants.

    13 South Dakota v. Neville, 459 U.S. 553 (1983).

    14 The issue in Neville was whether governmental use of a suspected drunk driver’s refusal to submit to a chemical test to prove consciousness of guilt violated the motorists’ Fifth Amendment right against self-incrimination. Neville, 459 U.S. at 554.

    15 Mitchell, 2018 WI 84, ¶ 26, 383 Wis. 2d 192 (quoting Marshall v. Barlows Inc., 436 U.S. 307, 313 (1978)).

    16 Id. ¶ 70.

    17 Id. ¶ 84.

    18 The plurality lead opinion in Mitchell, 139 S. Ct. 2525, was authored by Justice Alito and joined by Chief Justice Roberts, Justice Breyer, and Justice Kavanaugh. A concurring opinion filed by Justice Thomas fully agreed with the rationale, but he wrote separately to reaffirm his dissent in McNeely that he would go further and adopt the Bohling rationale that the dissipation of alcohol from the body always creates a per se exigency.

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