No warrant needed to draw blood from unconscious driver, Wis. court rules

For all of the fascinating opinions from the Minnesota Supreme Court in recent years on the question of whether warrants are needed to test drivers for DUI, the Wisconsin Supreme Court one-upped them all with a ruling today on whether a warrant is needed to draw blood from someone who is unconscious.

It is the latest indication that despite three major opinions in the last several years from the U.S. Supreme Court, the question of warrants when testing drivers for operating under the influence continues to vex state courts.

A warrant is not needed in this case, a sharply divided court ruled today in the case of David Howes, who was riding a motorcycle in Dane County in the summer of 2013 when he hit a deer.

Since he was seriously hurt and unconscious, he couldn’t give his consent for the search. At the hospital, those attending the injured man told a sheriff’s deputy Howes smelled of alcohol. The deputy ordered them to draw his blood.

Howes had a blood alcohol content of .11, well over the .02 percent limit for him under Wisconsin law.

An appeals court overturned a lower court finding that the blood draw was a constitutional search.

But in overturning that decision today, Chief Justice Patience Roggensack, writing for the majority of the Wisconsin Supreme Court, said the evidence in the case — the alcohol — would dissipate in the time it would have taken to get a warrant. And it said the deputy had probably case to arrest Howes before the blood was drawn.

In this case, the deputy checked Howes’ driving record, which indicated that Howes had three prior OWI/PAC convictions. This lowered Howes’ PAC threshold to 0.02 percent. The circuit court properly found this highly relevant in determining that the deputy had probable cause to arrest Howes.

Moreover, three people told the deputy that Howes smelled of intoxicants: (1) an individual at the scene of the accident; (2) one of the EMTs who rode in the ambulance with Howes; and (3) a nurse at the hospital. Taken together with the vehicle accident, these facts were sufficient to provide the deputy with probable cause to arrest Howes for operating a vehicle with a prohibited alcohol concentration.

In reaching its decision, the Wisconsin Supreme Court cited a 2015 ruling from the Minnesota Supreme Court, which was also divided on the question, that said under the “totality” of circumstances, a warrantless blood draw of a hospitalized individual was justified by “exigent” circumstances (See ruling).

If Howes violated his restricted PAC with a blood alcohol concentration of 0.02 percent, it would take approximately an hour for Howes’ blood alcohol level to go to 0.00 percent. This is roughly the amount of time that elapsed between Howes’ accident and the time in which the deputy first had probable cause necessary to obtain a warrant. As each minute passed, the likelihood that Howes’ blood alcohol level would diminish to 0.00 percent increased significantly. At 0.00 percent, it would be impossible to calculate what his blood alcohol level was at the time of the accident.

In a concurring opinion, Justice Michael Gableman went further, declaring that under Wisconsin’s implied consent law, drivers automatically consent to be tested by blood, breath, or urine. And a driver doesn’t withdraw the consent by being unconscious.

“The statute contains no requirement that any driver, whether conscious or not, must expressly consent to testing; consent is deemed to have been given when the person voluntarily chose to drive on Wisconsin
highways,” he wrote in today’s opinion.

But Justice Shirley Abrahamson called the decision an “assault” on a U.S. Supreme Court decision mandating a warrant if authorities can reasonably do so.

In the court case, the deputy testified that he had time to get a warrant, but didn’t bother because he didn’t think he had to.

“If the defendant’s BAC was substantially higher than 0.02 percent, then law enforcement would have had more than one to two hours after the last drink within which to obtain a warrant for a blood draw and still gather evidence that defendant violated the law,” Justice Abrahamson said.

She was joined by two other justices in her dissent.