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Can they take your blood if you passed out? “Mitchell v. Wisconsin: Unconscious Drivers and the Implied Consent Law”

                It is common knowledge that those who drive after consuming a sufficient amount of alcohol may be charged with operating a motor vehicle while intoxicated (OWI). While investigating an OWI case, it is common for law enforcement officials to ask the driver of the vehicle to submit to a breath and blood test. This is used to determine the driver’s blood alcohol concentration (BAC) in order to prove whether the person was under the influence while driving.

Wisconsin is an “implied consent” state, which means that by operating a motor vehicle on a highway within the state, the driver has impliedly consented to a test of his or her blood or breath for the purpose of determining whether there is any detectable amount of alcohol in his or her blood. A driver may refuse to submit to those tests, but he or she may still be prosecuted for a drunk driving related offense and may face additional criminal consequences as well.

The implied consent law has been challenged in various courts, both state and federal, several times in the past. Most recently, one narrow aspect of the law was challenged before the United States Supreme Court in Mitchell v. Wisconsin. In this case, the Supreme Court was asked to decide whether law enforcement has the authority under the implied consent law to perform a blood test on a suspected drunk driver who is unconscious and cannot submit to a preliminary breath test without first obtaining a search warrant.

Justice Alito, writing the main opinion for the United States Supreme Court, concluded that the exigent circumstances doctrine almost always permitted law enforcement to perform a blood draw on an unconscious subject without a warrant. The exigent circumstances doctrine allows law enforcement to conduct a search (or here, a blood test) without a warrant when potential key evidence in the investigation could be destroyed before the warrant would be obtained.

So how will this ruling be applied going forward? Wisconsin courts will most likely continue to adopt the policy that in almost every case, a warrantless blood draw can permissibly be performed by law enforcement. However, it is possible that suspected drunk drivers may be able to challenge the results of those tests if they can prove that exigent circumstances did not exist and a warrant could have been obtained prior to the performance of the tests.

If you or someone you know has been charged with an OWI-related offense, call Petit & Dommershausen for legal assistance today at (920) 739-9900.