Wisconsin OK’s warrantless blood draws in drunk driving crackdown

It’s a fair bet that the U.S. Supreme Court will have to decide a key constitutional question from Wisconsin at some point: What part of “you need a warrant” don’t you get, Wisconsin?

The country’s highest court struck down warrantless blood draws for people suspected of driving under the influence in 2016 and Justice Samuel Alito, who wrote the opinion for a divided court, seemed to see the future.

“It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be,” he wrote.

That scenario is the one the Wisconsin Supreme Court decided Tuesday, ruling 5-to-2 that the police don’t need a warrant to draw the blood from someone who is so drunk that they’re passed out, doubling down on a similar ruling it made last year.

“Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court’s reasons for not addressing the question we are deciding,” Wisconsin Justice Daniel Kelly wrote Tuesday in the ruling in the case of Gerald Mitchell who was still awake when the cops took him to the hospital to have blood drawn as evidence.

An officer told him he could refuse but by then Mitchell was out. So the officer told him to draw the blood anyway without a warrant to authorize it.

The Wisconsin court said under the state’s implied consent law, which — like Minnesota’s — says that in exchange for a driver’s license you consent to a search, Mitchell forfeited his right to consent. This, for the record, is pretty much what the U.S. Supreme Court struck down in ruling in favor of a North Dakota man, while upholding warrantless breathalyzer tests.

But Wisconsin Chief Justice Patience Roggensack said there are exceptions. She used a defense that once worked in Minnesota before it was struck down: that no matter what the Fourth Amendment may say, and no matter what the U.S. Supreme Court may rule, the need to crack down on drunk driving makes a warrantless removal of a person’s blood OK.

“We note that the statutes at issue here are the legislature’s attempt to stop the injuries and deaths drunken drivers inflict year after year on others who use Wisconsin highways,” Roggensack wrote on behalf of the majority of the court. “That drunken driving has resulted in and necessarily increased state regulation of the privilege of driving on public roadways is well known. Therefore, the context of well-publicized regulations forms part of the totality of circumstances we examine to determine whether a driver who has been arrested for OWI consented to be searched.”

Drivers have to yield to emergency vehicles, Roggensack said. They have to obey the speed limit. And they don’t have to give their consent every time they get in the car, she reasoned.

“Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin’s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated,” she wrote.

She also found cover in the U.S. Supreme Court’s ruling in the case of a South St. Paul man, which OK’d forcing a person to submit to breath tests without a warrant by criminalizing their refusal to do so. But she didn’t point out that that ruling was part of the same decision that struck down warrantless blood draws.

In a dissent, Justice Ann Walsh Bradley specifically noted the scenario the Justice Alito mentioned and found no confusion by what it meant.

“This language compels a single conclusion: law enforcement needed a warrant here,” she said.

“The lead opinion’s interpretation of the implied consent statutes attempts to accomplish exactly what the Birchfield court [the North Dakota and South St. Paul Supreme Court cases] said violates the Fourth Amendment——a blood test as a search incident to the arrest of an unconscious person for drunk driving.”

Bradley said her colleagues were using a Wisconsin law to overrule the guarantees of the Constitution.

“Under the lead opinion’s analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand,” she wrote.

It’s possible that if and when this case gets to the U.S. Supreme Court, warrantless blood draws will find a more friendly court. Justice Clarence Thomas, in fact, suggested in his dissent in 2016 that warrantless blood draws are constitutional. And Justice Anthony Kennedy, who announced his retirement from the court last week, was a swing vote in declaring they’re not.