Question: Can you discuss some of the rulings by the Wisconsin Supreme Court regarding blood draws?

Answer: There have been several major OWI cases before the Wisconsin Supreme Court recently that involve blood draws and these have exposed some pretty basic disagreements between the Supreme Court justices on how our OWI laws operate in Wisconsin. These disagreements remain unresolved for the most part and the state of the law remains unclear as a result. But I’ll talk about three recent decisions that highlight these issues.

The first one I’ll talk about is State v. Howes and in that case the Court was asked to determine whether a portion of Wisconsin’s implied consent law was unconstitutional. The law normally requires that when a person is arrested for an OWI, the police have to read certain information to that person and they have to ask the person if he or she will agree to a breath test or a blood test. And the person can normally say “yes” or “no.” Now in this case, Mr. Howes was in an accident and he was unconscious and he was suspected of drunk driving. So in that situation, the law as it’s written basically says since they assume or imply that everyone already consented to a blood test in advance, they can just go ahead and take your blood without asking you when you’re unconscious.

Now, Mr. Howes challenged that, saying it’s unconstitutional; you can’t just pass a law saying that everyone agrees to give up a blood test. You actually have to ask permission or consent before the testing. And so Wisconsin Supreme Court took that case, but they were ultimately unable to reach a resolution. Out of the seven justices, you had three of them that agreed with Mr. Howes, saying that the Constitution prohibits the legislature from just passing a law that says everyone has to automatically give a blood sample without being asked.

Two of the justices disagreed with that and said the law is fine as it is. And then two of the justices didn’t answer the question; they basically dodged the question, said it didn’t matter because under those specific circumstances there was sort of an emergency and they could use this exception called exigent circumstances to get around the law completely. So this type of decision is what you’d call a fractured decision where you have seven justices, you have to have at least four that agree on something, and in this case, there’s no four justices that really agreed on anything. So this issue remains unresolved. Some judges in the state feel the law is unconstitutional, some feel that it’s fine and there’s really no guidance form the Supreme Court on that.

Interestingly there’s another case coming up before the Supreme Court in 2018 that is raising the same issues, so of course the big question is when they hear this case whether they will be able to come to a consensus of at least four of them agreeing on something or not.

The next case I want to talk about is State v. Brar and this is another case involving a blood draw and a drunk driving charge. And there are several interesting issues that came up in this case. But the one with the biggest implications statewide was about how the implied consent law is supposed to work; basically what is the framework you’re working under? Is it people provide consent in advance just by driving on the road? Or do they only provide consent when a police officer specifically asks them for a blood sample? Again, in this case, the court was not able to come up with a majority on this big question. There are several justices that said that the consent was provided in advance and there were several that believed that it was not. And the ultimate question still ended up still up in the air.

The last case I’m going to talk about is State v. Blackman. This is a case where a very unusual situation that doesn’t come up very often. Mr. Blackman was in an accident, the police actually didn’t have a specific reason to believe he was impaired but they wanted to get a blood sample anyway. That doesn’t come up very often, but in this case that’s the situation. So the police read him this warning from the implied consent law saying that they wanted him to provide a blood sample and if he refused to provide a blood sample his license is going to get revoked. The problem is the law doesn’t actually allow for that possibility. Under those circumstances, they can’t revoke your license unless they have some reason to believe you’re impaired. So, Mr. Blackman agreed to provide a blood sample but then later on his attorneys challenged it because it turned out he that was mislead by the police. And ultimately the Supreme Court agreed and said that Mr. Blackman was misled by the police.

The police gave him information that said there would be a consequence, but that consequence was not actually possible. So, the exact circumstances of this case were pretty unusual, but the big picture is the Court made some decisions here about how the implied consent law is supposed to work. In this case, you finally got an actual majority of the justices on the Wisconsin Supreme Court agreeing that Mr. Blackman’s consent to the blood test did not occur when he used a public roadway, it occurred only when the police actually asked him that question. And what this means going forward is that courts are going to have to look carefully at what happens between the suspect and the officer when the officer is asking for the blood test; they can’t just assume there was consent from driving on the road. So, if the officer misleads or threatens or improperly influences a person into giving a blood test, there is a possibility for that test to get thrown out.

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