Wisconsin Supreme Court: Implied consent applies to blood tests

“Implied consent” is the legal theory that drivers, by accepting a state driver’s license, agree to provide a breath sample upon request when a law enforcement officer has probable cause to believe the driver is drunk. For a time, many states believed that drivers inherently agree to provide a blood sample to an officer with probable cause.

In 2015’s Birchfield v. North Dakota, however, the U.S. Supreme Court ruled that blood samples are so intrusive that a simple statement of probable cause is not enough. Instead, the officer’s belief that they have probable cause must be affirmed by a judge. In other words, a warrant is required before blood can be drawn.

The Wisconsin Supreme Court, however, has just issued an opinion that appears to go against the Supreme Court’s ruling in Birchfield. It ruled that a police officer didn’t need a warrant to perform a blood draw on a driver who became unconscious.

The case involved a man who was reportedly driving drunk on a beach in Sheboygan County. He was pulled over and a breath test indicated that his blood-alcohol level was 0.24 — three times the legal limit. The police arrested him and took him to a hospital to have a blood test performed.

At the hospital, the officer apparently attempted to give the man an opportunity to withdraw his consent to the blood draw. However, the man had fallen unconscious and could not be roused. Therefore, the officer directed hospital staff to perform the blood test.

Ultimately, the man was convicted of OWI and appealed, claiming that the blood draw should be considered an unreasonable search under the Fourth Amendment. The state responded that the officer had probable cause to get the blood test because of the breath test and the officer having witnessed the man’s drunken state.

In a 5-2 ruling, the Wisconsin Supreme Court decided that implied consent applies to blood draws. By using Wisconsin’s roads, they reasoned, he had given his consent for a blood test whenever a law enforcement officer had probable cause.

The two dissenters accused the majority of attempting to “create a statutory per se exception to the constitutionally mandated warrant requirement” identified by the Supreme Court in Birchfield.

Under this ruling, you may not be able to prevent your blood from being drawn, even if you object. Also, since the court ruled that implied consent applies to breath, blood or urine tests, you could potentially lose your driver’s license for refusing. Be careful to register your objection to a blood test — but comply unless you’re willing to lose your license.

After an OWI arrest, don’t panic. Call an experienced attorney who will protect your rights.