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State v. Howes: SCOW’s latest rejection of McNeely

Adam P. Nero

Adam P. Nero

By Adam P. Nero

As David Howes lay unconscious and injured in his hospital bed, a Dane County Sheriff’s Deputy took the curious step of reading to him the warnings from the “informing the accused” form, and then asking the form’s ultimate question: “Will you submit to an evidentiary chemical test of your blood?”

Not surprisingly, the deputy received no answer.

The time was 10:15 p.m., about an hour after the deputy responded to a serious accident involving Howes’ motorcycle and a deer. Construing Howes’ silence as consent, the deputy never attempted in the following hour to obtain a warrant. At 11:17 p.m., hospital personnel stuck a needle into Howes’ arm and drew his blood to learn if he was driving drunk when his motorcycle collided with the agile and unpredictable creature.

About 10 months after Howes’ accident, but more than two years before the Wisconsin Supreme Court’s decision in his case, the Court of Appeals dropped a forewarning footnote in State v. Padley. 2014 WI App 65, ¶39 n.10. The footnote cast doubt on the constitutionality of the parts of Wisconsin’s implied-consent law that ostensibly permit administering an evidentiary blood test to an unconscious driver. These blood draws have historically occurred under the shaky legal theory that, at the time a Wisconsin driver obtains her driver’s license, she provides prospective, valid, and constitutional consent to a blood draw in the unforeseeable event that she loses consciousness in an automobile accident, and an officer wants to test her blood. Wis. Stat. §§ 343.305(3)(ar); (3)(b).

The Padley court appeared to encourage law enforcement officers to find more solid ground — that is, a warrant, which today can generally be obtained by phone in well under one hour, provided that an officer attempts to do so. The difficulty, as Justice Shirley Abrahamson acknowledged at oral arguments in the Howes case, is not in obtaining a warrant. Rather, the difficulty lies in having to bother a judge at inconvenient hours of the night or early morning. She observed: “McNeely is a very much disliked case by the trial court bench across the country, because … in the middle of the night … you have to have an on-duty judge who’s gonna take a phone call or a knock on the door.”

Still, a trial court judge granted Mr. Howes’ motion to suppress, noting on the record: “The duty judge was a phone call away. … (T)hat procedure is more consonant with the Fourth Amendment than reading a form to an unconscious man.”

Lead opinion: exigent circumstances

The lead opinion in Howes decided the case on grounds not previously dealt with in the case, that is, exigent circumstances, reasoning that “the officer was delayed in obtaining a blood draw due to the defendant’s medical condition.” This reasoning is problematic for several reasons.

Mainly, the officer admitted in the circuit court that he had had plenty of time to get a warrant. He just believed that he did not have to.

Also, citing “medical delays” is just a different way of saying “the natural dissipation of alcohol over time.” According to Missouri v. McNeely, 569 U.S. ___ (2013), that is not an exigency. Moreover, the actual timeline in this case belies Chief Justice Pat Roggensack’s contention that Howes’ medical condition prevented the officer from getting a timely warrant. Although the precise time of driving is unknown, the deputy was dispatched to the accident at 9:18 p.m., ordered medical staff to perform a blood draw at 10:15 p.m., and the blood draw occurred at 11:17 p.m. Despite the one hour required for investigation and transport between 9:18 p.m. and 10:15 p.m., the deputy had another hour before the blood draw either to (1) phone a judge and get a warrant, or (2) delegate that task to another law enforcement officer – but he never even tried.

Finally, Wisconsin case law on “retrograde extrapolation” — the practice of dialing back the blood alcohol level at the time of the blood draw to a known or speculated time of driving – is lenient to the State. See State v. Chough, No. 2016AP406-CR (Ct. App. Jan. 25, 2017) (allowing the state’s expert to extrapolate a blood alcohol level to several potential but unproven times of driving) (unpublished) (citing State v. Giese, 2014 WI App 92). At oral arguments, counsel for Mr. Howes went so far as to say that the three-hour window for automatic admissibility from Wis. Stat. § 885.235, said to create the exigency, “doesn’t even matter anymore.” Good arguments could be made to support that position.

In any event, governments cannot legislate away a person’s constitutional rights. The legislature could amend the statute to provide for a one-, two-, or four-hour window. The court has never explained — neither in State v. Tullberg, 2014 WI 134, nor in Howes — why this legislative decision should affect a constitutional exigency analysis.

Justices Rebecca Bradley and Dan Kelly joined in Roggensack’s lead opinion.

Gableman’s concurrence: consent

Despite whatever else one could say about the validity of Justice Michael Gableman’s position, he at least reached a conclusion on the question certified to him by the Court of Appeals. The lead opinion entirely dodged the question of the “unconscious driver” provision’s constitutionality. Even though Gableman cited several cases in which other states’ supreme courts struck down identical statutes, he simply went on to acknowledge that his opinion differed. Justice Annette Ziegler joined in his concurrence.

Kelly’s dissent/concurrence

Kelly joined Roggensack’s lead opinion, which held that exigent circumstances justified the blood draw in this case. However, he also joined in the part of the dissent that would strike down the “unconscious driver” provisions of the implied consent law.

Abrahamson’s dissent

Abrahamson would have struck down the statute, and noted that the lead opinion “misleads the reader into believing that the circuit court addressed and decided the existence of exigent circumstances.” Had either party raised the issue, or had the circuit court dealt with it, then the parties’ briefing presumably would have discussed it. The appellate briefing lacks any developed argument on the question of exigent circumstances.

On the merits of the exigent circumstances analysis, Justice Abrahamson did not mince words: “(T)he lead opinion engages in an assault on (McNeely),” which “caused a paradigm shift in Fourth Amendment and drunk-driving law.”

Justice Ann Walsh Bradley and Kelly joined in Abrahamson’s conclusion that the statute is unconstitutional, but Kelly joined the lead opinion in all other respects.

The takeaway

The Howes opinion was lengthy and fragmented. No four justices agreed on the constitutionality of the “unconscious driver” provision of Wisconsin’s implied consent law; in fact, only five chose to discuss it. Thus, the Howes court dodged the most pressing question before it by deciding the case on grounds not raised in the circuit court or Court of Appeals. This practice “violates a basic rule of appellate review by bypassing the adversary process and raising and deciding a dispositive issue on its own without the benefit of briefs or argument.” Howes at ¶106 (Abrahamson, J., dissenting).

By doing so, the lead opinion also doubled down on cases like Tullberg (upholding a post-McNeely warrantless blood draw based on exigency) and Parisi, 2016 WI 10 (holding, despite McNeely, that the national dissipation of heroin from the bloodstream constitutes an exigency sufficient to overcome the warrant requirement).

Regardless of Wisconsin’s failure to decide the issue, “unconscious driver” statutes exist across the country, and nationwide, courts are divided on the issue. Therefore, the issue is ripe for a timely and definitive resolution at the U.S. Supreme Court.

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