By: Derek Hawkins//July 25, 2018//
WI Supreme Court
Case Name: State of Wisconsin v. Gerald P. Mitchell
Case No.: 2018 WI 84
Focus: OWI – 4th Amendment Violation
This appeal is before us on certification from the court of appeals. Gerald Mitchell was convicted of operating while intoxicated and with a prohibited alcohol concentration, based on the test of blood drawn without a warrant while he was unconscious, pursuant to Wis. Stat. § 343.305(3)(b) (2013–14). Mitchell contends that the blood draw was a search conducted in violation of his Fourth Amendment rights.
We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin’s roads and drinking to a point evidencing probable cause of intoxication. Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under Wis. Stat. § 343.305(4), to withdraw his consent previously given; and therefore, § 343.305(3)(b) applied, which under the totality of circumstances herein presented reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.
Affirmed
Concur: KELLY, J., concurs, joined by R.G. BRADLEY, J. (opinion filed).
Dissent: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed).