In Wisconsin when there is a law enforcement investigation to determine if a driver is under the influence of alcohol or drugs, the evidence is a critical factor in the outcome of the case. For operating while intoxicated or driving under the influence, drivers can face severe penalties including jail, fines, lost driving privileges and more. To make matters worse, a conviction for OWI/DUI can be a severe hindrance for future endeavors. Combating the evidence might be a critical factor in a case and a recent appeals court ruling could bolster a defense.
In the decision, the appeals court stated that it is unconstitutional if blood is drawn from an incapacitated driver. This is based on the Fourth Amendment protecting people against search and seizure. Because the driver is unconscious at the time, no consent can be given for a blood draw, violating the driver’s rights if it is done. This can have a significant impact on implied consent and what law enforcement is legally able to do as part of an OWI/DUI investigation.
The court referenced state courts that assessed this issue and agreed with previous interpretations of the law. The disparity between law enforcement seeking to do its job and the rights of people who are subject to the investigation was a complicated aspect of the decision. Based on implied consent, law enforcement generally has the right to test drivers if there is probable cause of a crime. There is a provision in Wisconsin law that allows for a blood draw if the driver is unconscious because of alcohol or drugs. It is that provision that the court deemed unconstitutional.
There are many parts of an OWI/DUI investigation that could be called into question in a defense. The blood-alcohol concentration is fundamental with these cases and drivers who register .08% BAC and minors under 21 who register .02% can face an arrest and conviction. Still, there could have been an issue with the testing device that made its results inaccurate. The traffic stop itself could be called into question as law enforcement must have reasonable cause to make it.
These considerations along with the possibility that the test was given to an incapacitated driver who could not give consent for it are all potential areas to craft a defense. Before saying or doing anything to make the situation worse, it is important to be protected under the law. A firm with experience and understanding of OWI/DUI arrests and providing effective defense may be able to help.
