Court: Police can take blood from unconscious drivers (UPDATE)

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By CARA LOMBARDO
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court has ruled that law enforcement officers can take blood samples from unconscious drivers without a warrant under certain circumstances.

The court ruled Wednesday that an officer can be justified in taking a blood sample without a warrant when delaying would lead to the destruction of evidence, namely falling levels of alcohol in the drunken driver’s bloodstream.

The ruling concerned the case of David Howes, who in 2013 crashed his motorcycle into a deer. Howes, who had previous drunken driving convictions and smelled of alcohol, was unconscious and unable to give consent when a Dane County sheriff’s deputy ordered hospital staff to take a blood sample from him two hours after the crash.

Howes had argued the deputy violated his rights. A circuit court concluded the deputy had probable cause to arrest Howes but not to obtain a blood draw without a warrant.

Chief Justice Pat Roggensack, writing for the majority, said the circumstances in Howes’ case met the criteria for a warrantless blood draw because the situation was urgent. She wrote that the deputy could have reasonably believed that waiting until after Howes received medical attention to test his blood would destroy evidence.

In a concurring opinion joined by Justice Annette Ziegler, Justice Michael Gableman relied on the state’s implied consent law. Under the law, drivers implicitly consent to drug and alcohol testing when doing so would combat intoxicated driving and protect public safety.

Justice Shirley Abrahamson wrote the dissent, arguing that implied consent is unconstitutional because consent cannot be given by unconscious drivers. Abrahamson also wrote that the majority opinion did not meet the “heavy burden” necessary for warrantless blood draws. Further, she wrote that the deputy in Howes’ case would have had adequate time to get a warrant.

Justice Ann Walsh Bradley joined the dissent.

Justice Daniel Kelly partially concurred and partially dissented. He agreed with Abrahamson that the implied consent law is unconstitutional.

Howes’ attorney, Mark Eisenberg, said that Abrahamson’s dissent was “right on the money.”
He said the majority’s argument relied on the assumption that the deputy wouldn’t have time to get a warrant, which was speculative.

“I am going to take this up to the Supreme Court of the U.S. and see what happens,” Eisenberg said.

The state’s attorney had no immediate comment.