OWI – 4th Amendment Violation

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WI Supreme Court

Case Name: State of Wisconsin v. Gerald P. Mitchell

Case No.: 2018 WI 84

Focus: OWI – 4^th 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).

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.