Court of Appeals certification asks: Does the implied consent law creates a categorical exception to the warrant requirement?

State v. David W. Howes, 2014AP1870-CR, 1/28/16, District 4; certification granted 4/7/16, reversed, 2017 WI 18; case activity (including briefs)

Issue:

This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.

An important issue for anyone challenging, or thinking about challenging, a blood draw in a driving case, for as the court explains in its lengthy disquisition on the relevant law, there is a lack of consistency among the cases about the rationale for concluding that the implied consent law comports with the Fourth Amendment. While the facts of this case involve an unconscious suspect, and thus directly addresses the provisions in § 343.305(3)(ar) that authorizes police to take blood samples without a warrant from “[a] person who is unconscious or otherwise not capable of withdrawing consent,” the issue “will necessarily implicate the implied consent law as it applies to conscious suspects.” (Certification at 2).

If you’re currently litigating an implied consent law issue, be sure to read the certification in full for its complete analysis. For purposes of this post, we’ll just say that the basic question boils down to when the “consent” under the implied consent law is given. Is it when the driver applies for an operator’s license (or, for drivers without a Wisconsin license when the driver operates a vehicle on a public road), long before any actual encounter with an officer looking for a blood alcohol test? Or is it when the driver is read the “informing the accused” form and, in response, agrees to the requested chemical test? Some cases say it’s getting the license, e.g., State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, while others say it is the actual consent given after being informed of the consequences of refusal, State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867. (The certification (pages 13-23) gives a detailed discussion of other cases as well, all of which taken together create a “muddled” case law.)

Why does this matter? Because for a long time the issue of consent was essentially irrelevant to blood draws, since under the rule of State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), the dissipation of alcohol created a per se exigency that dispensed with the need for a warrant or consent. But now that Bohling has been invalidated by Missouri v. McNeely, 133 S. Ct. 1552 (2013), police either need a warrant or some exception to the warrant requirement to do a blood draw. Consent, of course, is an exception to the warrant requirement; thus, as the court puts it, with the easily met per se exigency rule gone, attention turns to consent as the next easiest exception to the warrant requirement. (Certification at 13).

The state argues that the implied consent law creates a categorical exception to the warrant requirement, and that all persons who drive on a Wisconsin highway have consented in fact to blood alcohol testing (though the implied consent statute implicitly recognizes that a conscious person, at least, can “withdraw” that consent by refusing and accepting the consequences). (Certification at 10-12). Howes, on the other hand, argues that, as McNeely just reminded us, categorical or per se exceptions to the warrant requirement are disfavored, and that in the specific context of the consent exception, an inquiry into the validity of consent must always be case-by-case, and can never be made categorical. (Certification at 9-10). A significant issue, no doubt, and it seems likely the supreme court will need to take it on sooner or later.