SCOW: Driver can’t revoke consent to test of validly drawn blood sample

State v. Jessica M. Randall, 2019 WI 80, 7/2/19, reversing an unpublished court of appeals decision; case activity (including briefs)

A majority of the supreme court holds that a person who has been arrested for OWI and consented to a blood draw cannot prevent the testing of the blood sample for alcohol or drugs by advising the state she is revoking her consent.

Two days after being arrested and consenting to a blood draw, Randall’s lawyer wrote to the State Lab of Hygiene to tell them she was “revoking” her consent to the collection and analysis of her blood, asserting her right to privacy in her blood, and demanding return of her blood sample. (¶¶2-3). The Lab went ahead and tested it anyway. (¶4). The circuit court suppressed the test result, concluding Randall validly revoked her consent, and the court of appeals affirmed. (¶¶5-6).

Five justices of the supreme court—two in a lead opinion (Kelly and R.G. Bradley), three in a concurrence (Roggensack, Ziegler, Dallett)—disagree with the court of appeals. Though there is not complete agreement between the lead and concurring justices as the basis for their conclusion, together they agree that once a blood sample has been lawfully obtained, a person arrested for OWI has no reasonable expectation of privacy as to the alcohol or drug content in the blood and therefore the testing of the blood sample for alcohol or a drug is not a search subject to Fourth Amendment regulation. Here are the two conclusions:

¶39     …. We … conclude that, although the State must comply with the Fourth Amendment in obtaining a suspect’s blood sample, a defendant arrested for intoxicated driving has no privacy interest in the amount of alcohol in that sample. Where there is no privacy interest, there can be no constitutionally-significant search. Therefore, the State did not perform a search on Ms. Randall’s blood sample (within the meaning of the Fourth Amendment) when it tested the sample for the presence of alcohol. As a result, Ms. Randall’s consent to the test in this case was not necessary.  (Lead opinion of Kelly, J.)

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¶42      I conclude that a defendant who has been arrested for driving while under the influence of alcohol has no reasonable expectation of privacy in the alcohol concentration of the blood sample that has been lawfully seized…. Therefore, the subsequent testing of the blood sample to determine its alcohol concentration initiates no Fourth Amendment protections through which a defendant may prevent testing the blood sample by “revoking” consent after the blood has been drawn. Accordingly, I respectfully concur in the result reached by the lead opinion,
although I do not join that opinion. (Roggensack, C.J., concurring).

So the practical result is clear enough: a valid arrest of a driver for OWI followed by a valid blood draw allows the state to test the blood sample it collected for alcohol or drugs. Whatever the differing reasons for reaching that result, there is a clear five-vote majority for it, so it establishes a controlling rule. See State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995) (“a majority of the participating judges must have agreed on a particular point for it to be considered the opinion of the court”).

Since it isn’t obvious from reading the above summaries, you may be wondering just what separates the lead and concurring opinions. What follows is an attempt to summarize that and grasp its significance.

It may help to start with the different analytical approaches to the question. Randall, for her part, argues there are two distinct searches: the blood draw, first; the testing of the drawn blood, second. Therefore, each search needs a separate justification under the Fourth Amendment. (¶11). (The lone dissenting judge (A.W. Bradley) agrees with this approach. (¶¶78-109).) The court of appeals didn’t agree with this approach, but instead concluded there was one, ongoing search, and since it was initiated with Randall’s consent it could end with Randall’s revocation of consent. (¶13).

The lead opinion rejects Randall’s two-search paradigm, and says there’s only one search—the blood draw. It relies, inter alia, on Schmerber v. California, 384 U.S. 757 (1966), which doesn’t say anything about the need for a separate rationale for testing seized blood, and on the search-incident-to-arrest doctrine, which is premised (in part) on an arrestee having a reduced expectation of privacy in evidence of his or her crime. (¶¶14-35). From these strands the lead weaves (at some length) its conclusion that the subsequent testing of the blood for alcohol or drugs (versus other things) is not a search implicating the Fourth Amendment.

The concurrence gets to the same conclusion not by reliance on the search-incident doctrine, but by likening the blood sample to the undeveloped film lawfully seized pursuant to a valid warrant in State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). Just as developing the film was a method of examining a lawfully seized object, so too is testing the blood sample. (¶¶54-60). (As we noted here, a different court of appeals panel took this approach in coming to the opposite conclusion of the court of appeals panel in this case. See State v. Sumnicht, No. 2017AP28-CR, unpub. slip op. (WI App Dec. 20, 2017).) (¶¶54-63).

The concurrence criticizes the lead opinion for reaching out and relying on the search-incident doctrine. It points out (rightly) that the parties didn’t address that doctrine, that the doctrine’s overarching rationales—officer safety and preservation of evidence—have no application here, and that its employment here is far-reaching and without precedent. (¶¶67-74). (Indeed it is far-reaching, as it would seem to justify what everyone agrees is the search—namely, the blood draw—without a warrant, consent, or exigent circumstances.) In response to this criticism, the lead opinion say it finds the concurrence’s conclusion to have been reached “in an uncomfortably abbreviated fashion,” without real justification or due regard for the fact there is an expectation of privacy in all the other information in a person’s blood which, like the information on an arrestee’s cell phone, shouldn’t be available to rummage through at will. (¶¶33-35, 37-38).

So there’s the thin yet significant difference between the lead and concurring opinions. Does their sniping (¶¶37-38 & nn.13 and 14, ¶75) amount to anything important—in particular, to any emerging doctrine about searches in OWI cases? It’s not clear. As we’ve seen in the split decisions and rationales in other OWI search cases (e.g., here, here, and, most prominently and recently, here), deciding when searches of breath or blood for alcohol or drug content is hard because several different warrant exceptions could seem to apply, but it’s not always obvious whether a particular category of case fits well in any of those exceptions. This case is, it seems, another example of why courts find these cases to be hard.

Suffice it to say, only two justices embrace the expansive use of the search-incident doctrine, so that seems safely off the table (as it should be, after Missouri v. McNeely, 133 S.Ct. 1552 (2013)). And both sides clearly agree the testing of the blood can’t look for anything beyond alcohol or drugs. (¶¶36, 55). Though the lead opinion’s discussion of a privacy interest in other information provides one explanation for why the scope of the testing is limited, it also true that is the test Randall consented to (as the lead notes, ¶34, though without saying this fact obviates the need to invoke the search-incident doctrine). So testing for anything beyond that would require further consent or a warrant.

Which brings us to the final, related point. The lead opinion expresses a fear the concurrence’s abbreviated reasoning might unleash the power of the state to ask for tests of (or test results from) blood samples drawn for medical purposes. (¶¶37-38). But between the lead’s express rejection of this maneuver, and both the lead’s and the concurrence’s express limitation of the case’s holding to persons arrested for OWI and to testing for alcohol or drugs (for instance, ¶55), the decision shouldn’t be taken as authorization for the kind of rummaging in private medical records the lead opinion fears. Don’t let a prosecutor argue otherwise.