Court of appeals again asks SCOW to decide whether “implied consent” is really consent

State v. Philip J. Hawley, 2015AP1113, District 4, 11/21/18; case activity (including briefs)

Our supreme court has, three times, set out to decide whether the  implied-consent statute supplies “consent” in a Fourth Amendment sense, such that it constitutes an exception to the warrant requirement. Three times, it has failed to reach a binding majority on the question–or has it? The court of appeals, in this certification, suggests perhaps the supreme court has the answer already, depending how you count the votes.

There’s a lot going on here, for a certain type of law nerd. There’s the substantive question itself, which has generated a whole lot of writings and no clear result in the three foregoing cases: Howes, Brar and Mitchell. It’s also popped up quite a bit around the country, with sharply conflicting results. A solid majority of courts have held that the legislature isn’t free to simply “deem” a person to have consented to a Fourth Amendment search: that’s just not what “consent” means, and besides, the Supreme Court has said, in Schneckloth v. Bustamonte, that Fourth Amendment consent has to be voluntary under the totality of the circumstances, while implied-consent statutes ignore all but a very few circumstances.  Some courts have also noted that Missouri v. McNeely came out pretty strongly against per se exceptions to the warrant requirement for blood draws, and, of course, that’s just what an implied-consent statute is. See, e.g., State v. Romano, 800 S.E.2d 644, 652 (N.C. 2017). A few courts have disagreed, though their reasoning has been, frankly, a little lacking. See, e.g., People v. Hyde, 393 P.3d 962 (Colo. 2017).

There’s also the related question of whether an implied-consent blood draw from an unconscious motorist might satisfy some other Fourth Amendment exception. The court of appeals considers, and then casts considerable doubt on, Justice Kelly’s theory, expressed in Mitchell, that such draws are valid searches incident to arrest.(That’s the court of appeals’s view of what Justice Kelly said, anyway. The state had argued he was applying a “general reasonableness” exception which, the court of appeals says, doesn’t exist.)

But there are also questions about the precedential value of fractured SCOW opinions (of which, the court of appeals notes, we’ve seen quite a few lately). Like, if, as in Mitchell, two concurring justices and two dissenting ones agree on a legal proposition, is that proposition law? The court of appeals concludes that a footnote in State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863 N.W.2d 567, suggests not, but then provides a set of arguments that it should be. In particular, the court of appeals asks, why should we combine a “lead” opinion and a “concurrence” which disagree on some points and agree on others, but not a “concurrence” and a “dissent” which likewise share points of agreement? Especially since, as the certification also notes, SCOW “lead” opinions lately often command fewer votes than the nominal “concurrences” following them.

In the court of appeals’ view, its own conflicting precedent and SCOW’s failure, so far, to issue a binding decision has left the lower court with “no principled way of deciding” Hawley’s case. So, they certify the question (for the third time). Here’s hoping for some clarity this time around.