Court OKs unconscious drunken drivers’ blood draws

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Wisconsin police can legally draw blood from unconscious drunken drivers without a warrant, the state Supreme Court ruled Tuesday.

The justices ruled 5-2 that drivers automatically consent to a blood draw when they drive on Wisconsin roads. If drivers drink themselves into unconsciousness, they forfeit any opportunity to withdraw that consent, Chief Justice Pat Roggensack wrote for the majority.

The ruling stems from a case involving Gerald Mitchell, who was arrested for drunken driving in Sheboygan County in 2013. Mitchell passed out after his arrest. Police took him to a hospital for a blood draw. An officer told him he could refuse, but Mitchell was still unconscious and couldn’t respond. The officer directed hospital staff to draw his blood without a warrant.

An analysis showed his blood alcohol content was 0.22 percent, well above the 0.08 percent legal limit for driving.

Mitchell argued the draw violated his constitutional rights to be free of unreasonable searches and seizures.

States across the country have been grappling with whether police need warrants to draw blood from unconscious drunken drivers. Courts in at least six states — Ohio, Colorado, Virginia, Florida, Minnesota and Idaho — have upheld warrantless draws from unconscious drunken drivers under the so-called implied consent concept, according to the Wisconsin Department of Justice. The Pennsylvania and Arizona supreme courts both ruled last year, however, that police need warrants before they can take blood from unconscious drivers.

Body-camera video of police handcuffing Utah nurse Alex Wubbels when she refused to allow police to draw blood from an unconscious car crash victim without a warrant last year drew widespread outrage. The incident prompted Utah lawmakers to pass a law this year clarifying that police can draw blood only with a person’s consent, a warrant or an exception approved by a judge.

Wisconsin’s Supreme Court ruled last year that police can take blood from unconscious drivers without a warrant in urgent situations where a delay could lead to the destruction of evidence. An appellate court sent Mitchell’s case to the Supreme Court, saying the justices should clarify if police need warrants in non-urgent situations.

Roggensack noted that under Wisconsin law drivers automatically consent to blood draws when they get behind the wheel. They can withdraw consent. but they will suffer civil penalties if they do so, including license revocation.

She pointed to other statutes that state someone who is unconscious or otherwise incapable of withdrawing consent is presumed to not have withdrawn it. Mitchell’s self-induced unconsciousness doesn’t render those statutes constitutionally unreasonable.

“Through drinking to the point of unconsciousness, Mitchell forfeited all opportunity … to withdraw his consent previously given,” Roggensack wrote.

Ann Walsh Bradley and Shirley Abrahamson, the court’s two liberal-leaning justices, dissented. Bradley wrote that the majority is creating an exception to constitutionally mandated warrant requirements and that there’s no evidence in Mitchell’s case that justifies departing from those requirements. Implied consent shouldn’t override constitutional protections, she concluded.

Mitchell’s attorney, Linda Schaefer, said she was disappointed that the justices feel statutes trump constitutional protections. She said she is considering a federal appeal.

“The Legislature is giving permission for law enforcement to leave behind Fourth Amendment protections and take a person’s blood, enter a person’s body and take away a piece of their body, without a search warrant,” she said.

Frank Harris, director of state government affairs for Mothers Against Drunk Drivers, called the ruling a “big win for Wisconsin.”

“When someone gets a driver’s license, they’re on public roadways and public safety is at risk,” Harris said. “Now if somebody is passed out, (police) can obtain that blood test without going through hoops.”