On behalf of Southworth and Stamman, LLC on Tuesday, June 11, 2013.
On April 17, 2013, the U.S. Supreme Court in Missouri v. McNeely issued a ruling that significantly affects the handling of OWI/DUI related cases. Prior to McNeely, officers were constitutionally permitted to withdraw the blood of a suspected driver against his/her consent without first obtaining a warrant. This was considered an exception to the Fourth Amendment that prohibits warrantless searches and seizures. The argument was that the natural dissipation of alcohol in the blood stream constituted sufficient exigency to permit an officer forego obtaining a warrant and initiate a blood alcohol test. However, in the recent McNeely case, the Supreme Court declared that the natural dissipation of alcohol alone does not exempt the police from obtaining a warrant for OWI/DUI suspects. Essentially, a person has a basic Fourth Amendment right against a warrantless blood draw, unless the police can show sufficient need to obtain the blood immediately without a warrant.
Must Officers Now Obtain A Warrant to Draw Blood Against a Person's Consent?Generally, if a person does not consent to a blood draw, the officer must now obtain a warrant before taking the person's blood. If the officer does not obtain a warrant first, then the blood is inadmissible in court, absent a showing of additional exigent circumstances (i.e. facts showing an emergency requiring immediate action by the police). If the State proves sufficient facts of exigency, then a court will permit the warrantless search.
The Supreme Court was not specific as to what additional facts the State would need to prove to bypass the warrant requirement, but the Court did not overturn a decision that permitted a warrantless blood draw when the defendant was already hospitalized from the accident and significant time had passed (Schmerber v. California). Yet, Schmerber was decided over 40 years ago. Warrants are much easier to obtain now than in the past. In some jurisdictions, an officer can obtain a warrant in less than 10 minutes. This raises the bar for the State, making it increasingly difficult to argue that the circumstances required a warrantless blood draw. Therefore, if an officer draws upon a person's blood without his/her consent and without a warrant, then the State has much to prove for the blood draw to be admissible in court.
Is Wisconsin's Implied Consent Law Unconstitutional?Currently, Wisconsin has implied consent statutes that require drivers to consent to a blood draw or face severe penalties including the loss of one's driver's license and monetary penalties. Yet, the implied consent statutes are based in part on the incorrect interpretation that warrantless blood draws are an exception to the Fourth Amendment prohibition against warrantless searches and seizures.
The State will argue that driving in Wisconsin is a benefit and the State can simply take away that benefit by revoking the driver's license as a consequence for refusing the blood alcohol test. Indeed, the Supreme Court in McNeely even mentioned implied consent laws and failed to notice the glaring problem.
Are our constitutional rights that easy for the State to bypass? If the implied consent laws are constitutional, then the State may strip you of a driver's license on the sole basis that you decided to exercise your constitutional right against a warrantless search. Would the police then be allowed to knock on your door and ask to enter, but if you refuse, fine you or take away your homeowner's rights? Could the State pass a law that requires drivers to consent to a vehicle search at any given time? Of course not - this is a real problem for the State.
State laws cannot mandate a person to give up constitutional rights by imposing severe penalties for the exercise of those rights. By punishing those who decide to exercise his/her constitutional right via the loss of invaluable driving privileges, the state is doing just that.
At this point, the Wisconsin implied consent statutes have not been ruled unconstitutional. Now that the Supreme Court has clarified that warrantless blood searches are not per se admissible based on the Fourth Amendment protections, the constitutionality of implied consent laws are called into question. This issue needs to be litigated to protect individual's constitutional freedoms. A serious constitutional problem arises when the state penalizes you so significantly for exercising your constitutional rights.
By Phillip Stamman
Please remember that nothing written here or anywhere on our website is legal advice and the information provided should not be taken as legal advice. OWI/DUIs are very complex. If you have been charged with an OWI/DUI or a Refusal, you should contact an attorney immediately.
Southworth & Stamman, LLC.