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.

  • Barton

    sadly, here is what I got out of this decision:

    An unconscious person has given up their “consent.” Which, leads to all sorts of issues with sexual violations for me.

    Yes, I personally agree that you have given consent to such tests simply by having a driver’s license: with the privilege comes responsibilities. Yes, that isn’t what this article is about. Yes, the motorcycle driver already had multiple DUI convictions which adds weight to the right to take his blood without consent. But I am still caught on taking something from an unconscious person without consent.

    • jon

      Implied consent laws say you’ve already agreed to give blood, urine, or breath (the “or” is going to be important when this happens to a member of a religion that doesn’t believe in blood draws) and furthermore, the court says, being unconscious doesn’t withdraw that consent.

      Which seems fair… kind of…

      But that also seems to suggest to me that were some one to give consent to sexual relations, but then be rendered unable to retract it, that consent will stand… That seems wrong to me…

      I feel like this is going to lead to some strange fetishes…

    • Jared

      While I understand what you’re saying, it seems that what you’re consenting to should matter. Organ donation comes to mind as a consent that isn’t withdrawn with death. I’m not sure if it would be called consent legally, but power of attorney seems similar to me (and they can consent to things on your behalf if you’re unable to). Clearly lines need to be drawn but I’d argue it’s dangerous to say that all legal consent is thrown out when someone is unconscious.

    • kennedy

      The topic of consent came up when I recently took first aid/CPR training. Someone who is conscious can reject assistance. Once they are unconscious, consent to accept assistance is implied.

      If paramedics show up to a vehicular accident and there is an unconscious victim, it seems reasonable to do a blood draw to help determine course of treatment. Testing the blood for drugs would also seem reasonable. So the question here seems to be whether the police should be given information from the blood test, which relates to medical privacy.

  • Dan

    I was curious about the .02 limit. It’s because it was his ‘fourth offense while having a prior OWI within five years’.

  • MikeB

    The concurring opinion eliminates the concept of consent. And the officer said he had the time to get a warrant, he just didn’t bother. The court doesn’t think too highly of individual rights