In State v. Howes, 2017 WI 18, the Wisconsin Supreme Court analyzed a warrantless blood draw in an OWI in light of, Missouri v. McNeely, 133 S. Ct. 1552 (2013), in which the U.S. Supreme Court addressed the constitutionality of warrantless blood draws to prevent dissipation in alcohol concentration. Howes, however, may not provide Wisconsinites all of the guidance that many anticipated.
The defendant, David Howes, was involved in a motorcycle versus deer crash. By the time a deputy responded, emergency personnel were already treating an unconscious Howes. The deputy could not find any witnesses, but a bystander reported that Howes smelled of intoxicants. Howes was hospitalized. On his way to the hospital, the deputy checked Howes’ record and found out that Howes had three prior OWI/PAC. This meant that Howes was subject not to the general 0.08% limit on blood alcohol concentration while driving but, as a repeat offender, to a stricter 0.02% limit. The deputy also spoke with the EMTs who treated Howes, one of whom reported smelling intoxicants emanating from Howes. The deputy arrested Howes, then unconscious, for operating a motor vehicle with a prohibited alcohol concentration based on the smell reported by others, the 0.02% threshold and the crash itself. While Howes was still unconscious the deputy read him the Informing the Accused form and asked if he would submit to a blood test. Receiving no response and without first seeking a warrant, the deputy instructed the hospital staff to draw a blood sample. The results showed Howes’ blood alcohol concentration was 0.11%.
In his trial for OWI (4th offense) and operating with a prohibited alcohol concentration, Howes moved to suppress the results of the blood draw. The circuit court granted the motion. The court found the deputy had probable cause to arrest Howes. However, the court held Wisconsin’s implied consent law was unconstitutional as it related to a blood draw of an unconscious person without a warrant or exigent circumstances.
The State appealed and the court of appeals certified the case to the Wisconsin Supreme Court. The court of appeals certified a single issue: whether the portions of Wisconsin’s implied consent law that allow for warrantless blood draws from unconscious suspects violate the Fourth Amendment to the Constitution.
The lead opinion, authored by Chief Justice Roggensack, reversed the decision by the trial court, but on grounds that appear to diverge from the reasoning of the trial court and the issue certified by the court of appeals. First, the court found the deputy had probable cause to arrest Howes for the same reasons outlined by the trial court. The court focused its analysis on exigent circumstances sufficient to justify a warrantless blood draw. Citing extensively to Schmerber v. California, 384 U.S. 757 (1966), and McNeely, the court found there were exigent circumstances, stating "Under the totality of the circumstances presented herein, which included a seriously injured, unconscious person, who was being subjected to medical treatments for his injuries and who had 0.02 percent as his PAC threshold, a reasonable officer could have concluded that further delay in drawing Howes’ blood would have led to the destruction of evidence through the dissipation and dilution of alcohol in Howes’ bloodstream." Howes, ¶ 51. The court remanded the case for further proceedings.
The majority concluded that exigent circumstances existed at the time due to the possible dissipation or destruction of evidence (alcohol) in Howes’ blood had the deputy waited to obtain a warrant. This was not the question presented in the circuit court, nor was it the question certified by the Court of Appeals.
Justice Gableman, joined by Justice Ziegler, concurred. While Justices Gabelman and Ziegler agreed with the majority’s mandate, Justice Gableman focused on the question certified by the court of appeals – “whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious driver based on the driver’s implied consent are unconstitutional under the Fourth Amendment to the United States Constitution.” Id. ¶ 52. Noting that McNeely was not relevant to this consideration, he found Howes did not prove beyond a reasonable doubt that the portions of the implied consent law applicable to unconscious drivers, namely the portions that indicate a driver consents unless he or she expressly revokes consent, are unconstitutional. The concurrence concluded the presumption established by the implied consent law that an unconscious driver does not withdraw consent was not per se unreasonable and in such a circumstance, there was no need for a warrant because the unconscious driver has voluntarily consented to the blood draw.
The dissent, authored by Justice Abrahamson and joined by Justice Walsh Bradley in full and Justice Kelly in part, held the portions of the implied consent law authorizing warrantless blood draws on unconscious individuals to be unconstitutional. Harshly criticizing the lead opinion’s focus on exigent circumstances, the dissent explained “because unconscious drivers have not freely and voluntarily consented to the warrantless blood draw under the Fourth Amendment . . . the warrantless blood test in the instant case should be suppressed.” Id. ¶ 136. More specifically, the dissent evaluated the issue in the context of searches incident to arrest, arguing that if the U.S. Supreme Court will not establish blood draws as a per se rules that warrantless blood draws are authorized under the search incident to arrest exception, then warrantless blood draws cannot be allowed based solely on statutorily imputed implied consent.
Ultimately, the split decision does not provide direct authority on the issue of the constitutionality of the implied consent law. Instead, this decision suggests that officers must continue to evaluate the totality of the circumstances and with an eye toward the issues relevant to exigent circumstances. The only clear-cut instruction at this point may be to obtain a warrant whenever possible.