Wisconsin DUI blood drawOn the Fourth of July we commemorate our 1776 indictment of a tyrannous king, and celebrate the declaration that we are a new county, independent of Great Britain.

On the third of July, the Supreme Court of Wisconsin marked, in its ruling in Wisconsin v. Gerald P. Mitchell, what some see as the curtailing of one of the most important natural rights for which we fought Great Britain: the right to be free from unreasonable searches and seizures.

The judges sitting on Wisconsin’s highest court held this week that the police are not required to seek a warrant before ordering that an unconscious person’s blood be drawn, so long as officers meet the very low burden of articulating probable cause to believe that a person was driving while intoxicated.

Wisconsin Statute 343.305(2) & (3)(a) provides that when a person is arrested on suspicion of driving while intoxicated, the police can request a blood sample, and that the driver “is deemed to have given consent to one or more tests of his. . . blood” when he “operates a motor vehicle upon the public highways of [Wisconsin]”. This is Wisconsin’s “Implied Consent” law. Wisconsin law does allow someone to revoke this implied consent an incur civil penalties. Wisconsin law also allows blood draws from unconscious persons, but since an unconscious person can’t revoke their consent to a blood draw, the issue is whether it’s constitutional to draw blood without a person having a chance to revoke implied consent. All 50 States have adopted some form of implied consent laws.

The rationale that implied consent laws are constitutional is that having a driver’s license is not a right but a properly regulated privilege. The federal Supreme Court has recognized restrictions to implied consent. The most important is the prohibition of criminal penalties for refusing to submit to a warrantless blood draw. Civil penalties that have a nexus to driving, such as suspension or revocation of a license, have been deemed constitutional by the courts.

In modern society, the use of motor vehicles is necessary. The government has a rational basis for regulating the safety of the use of those potentially dangerous motor vehicles. However, consent, as an exception to the warrant requirement of the Fourth Amendment, is not valid if it is not voluntarily given.

That is why the judges in Mitchell applied a two-step test to determine whether the implied consent of an unconscious person to draw his blood, who does not have an opportunity to revoke that consent, is voluntary consent. The majority opinion also relies on what is called the “pervasive-regulation doctrine” to justify this “legislative created consent” (as opposed to actual consent); which the dissenting judges refer to as a doctrine with “no internal logic capable of limiting its reach.”

The first step in the analysis is whether consent has been given. Laws, because they are promulgated and publicly accessible, are binding upon people whether they have chosen to read them or not. Since Wisconsin has enacted an implied consent law, any person who drives on a public highway has thus given, by their conduct, implied consent to law enforcement to draw his blood when there is probable cause to believe he is intoxicated.

The second step is to determine whether that consent was voluntarily given. Consent to a search is voluntary when it is given without being under duress or being impliedly or expressly coerced. Since driving on public highways is often a necessity, it can be argued that “implied consent” is a result of coercion, but this argument is overcome by the effect of a driver’s conduct in the context of Wisconsin law.

Police can’t order a blood draw without first having probable cause that a person has been driving while intoxicated. According to the judges authoring the majority opinion, this requirement that probable cause exists saves implied consent laws from possible unconstitutionality. People have a necessity to drive on highways, but since they don’t have a necessity to drive on highways while intoxicated, and instead freely choose whether to drive intoxicated or sober, their consent is not a product of coercion and is thus a reasonable search pursuant to the Fourth Amendment.

As to whether a person is conscious, that is not relevant, according to the majority judges, to the constitutionality of Wisconsin’s implied consent law or the two-step test. The majority judges determined that the right to revoke consent is a positive right created by statute. Therefore there is no obligation that you have knowledge of that statutory right before a blood draw is ordered. There is no right that you understand that right. There is no right that you have an opportunity to be conscious to exercise that right.

The judges dissenting to this majority opinion, in support of their dissent, emphasize that the judges of the federal Supreme Court, in its 2016, Birchfield v. North Dakota case, stated 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. . . and when [these situations] arise, the police may apply for a warrant if need be.” This statement appears to indicate that precedent may require warrants for unconscious blood draws and that the ability to consent to whether your blood is drawn is a right. That same case reasons that blood tests implicate paramount “interests in human dignity and privacy[,]” as blood tests can provide a lot more information than just a person’s blood alcohol content. Further, the dissent points out that current precedent says that warrantless blood draws as searches incident to arrest are unconstitutional.

The unconscious person in this situation, not having the ability to revoke consent, may have his rights violated in that with the threat of criminal sanctions present and no ability to revoke consent, his implied consent may not be voluntary and would thus be invalid.

The majority judges, relying on the pervasive-regulation doctrine, don’t believe there is right to revoke consent to a blood draw that is implied from driving a motor vehicle. In considering the right to revoke implied consent a positive right created by the legislature, the dissent points out that nothing would prevent the majority judges from allowing the removal of the right to withdraw implied consent entirely. If the majority here is correct, precedent on blood draws that result from a search incident to arrest may have to be reconsidered.

If you drink and drive in Wisconsin, you may want to consider tattooing your arms with something like “I revoke my implied consent to have my blood drawn,” in case you’re found unconscious by the police.


For more information about your legal rights in Wisconsin, or to schedule a free consultation with a Wisconsin licensed attorney, call or text Pro Legal Care LLC today at (815) 200-8802.