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Oral arguments set for Wisconsin case before SCOTUS

By: Erika Strebel, [email protected]//February 14, 2019//

Oral arguments set for Wisconsin case before SCOTUS

By: Erika Strebel, [email protected]//February 14, 2019//

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A criminal appeal challenging the constitutionality of Wisconsin’s implied-consent statute will be argued in April before the U.S. Supreme Court.

Gerald Mitchell was convicted of drunken driving following a test in which his blood was drawn without a warrant and while he was unconscious. The blood draw was authorized by a provision in Wisconsin’s implied-consent statute allowing a presumption of consent. Mitchell attempted to prevent the results of the blood draw from being admitted into evidence, contending that the blood draw was a search conducted in violation of his Fourth Amendment rights.

Sheboygan County Circuit Court Judge Terence Bourke denied Mitchell’s suppression motion, finding the search was lawful on grounds that the officers had probable cause to believe Mitchell had been driving while intoxicated.

Mitchell appealed his conviction, and the Wisconsin Court of Appeals certified the issue to the Wisconsin Supreme Court. In July, the justices affirmed Bourke, finding that Mitchell had “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.”

Mitchell filed his petition for certiorari to the U.S. Supreme Court in October. The court voted Jan. 11 to accept Mitchell’s petition for certiorari.

The appeal asks the justices to weigh in on whether a statute authorizing warrantless blood draws from unconscious drivers is an exception to the Fourth Amendment’s warrant requirement.

Although the court in 2013 and 2016 seemed to give the green light to implied-consent laws that impose civil penalties, Wisconsin as well as other states have laws that allow for blood draws to be taken from drivers without a warrant, even when exceptions to the Fourth Amendment warrant requirement do not apply. State courts of appeal are split on whether statutes like Wisconsin’s violate the Fourth Amendment, according to court filings.

The court on Monday scheduled oral argument in the case for April 23.

Assistant State Public Defender Andy Hinkel will argue the case on behalf of Mitchell. The last time a lawyer from the SPD argued before the court was in 1988. The Wisconsin Department of Justice has not yet decided who will argue on behalf of the state.

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