warrantless blood test in Wisconsin

2026The United States Supreme Court has instructed that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” McNeely, 569 U.S. at 152 . ¶9 “[T]he test for determining the existence of exigent circumstances is an objective one.” State v. Tullberg, 2014 WI 134, ¶41 , 359 Wis. 2d 421 , 857 N.W.2d 120 (citation omitted).

2026The United States Supreme Court has instructed that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” McNeely, 569 U.S. at 152 . ¶9 “[T]he test for determining the existence of exigent circumstances is an objective one.” State v. Tullberg, 2014 WI 134, ¶41 , 359 Wis. 2d 421 , 857 N.W.2d 120 (citation omitted).

2017The Court remanded the cause to the state court to reevaluate the accused's consent in light of the inaccuracy. ¶59 In Artic, quoting State v. Phillips, 218 Wis. 2d 180, ¶33 , 577 N.W.2d 794 (1998), the court provided multiple non- exclusive factors, including misrepresentation, to determine whether consent was given voluntarily: (1) whether the police used deception, trickery, or misrepresentation in their dialogue with the defendant to persuade him to consent; (2) whether the police threatened or physically intimidated the defendant or 21 See also Bumper v. North Carolina, 391 U.S. 543, 548-

2017The Court remanded the cause to the state court to reevaluate the accused's consent in light of the inaccuracy. ¶59 In Artic, quoting State v. Phillips, 218 Wis. 2d 180, ¶33 , 577 N.W.2d 794 (1998), the court provided multiple non- exclusive factors, including misrepresentation, to determine whether consent was given voluntarily: (1) whether the police used deception, trickery, or misrepresentation in their dialogue with the defendant to persuade him to consent; (2) whether the police threatened or physically intimidated the defendant or 21 See also Bumper v. North Carolina, 391 U.S. 543, 548-

2023Also in 2021, this court decided State v. Forrett, 2021 WI App 31 , 398 Wis. 2d 371 , 961 N.W.2d 132 , where we held that the “statutory scheme permitt[ed] the use of his prior refusal to submit to a warrantless blood test after arrest to increase the criminal penalty for a subsequent OWI.” Id., ¶1.

2022We will uphold the court’s factual findings unless they are clearly erroneous, but we independently apply constitutional principles to those facts.” State v. Ionescu, 2019 WI App 68, ¶8 , 389 Wis. 2d 586 , 937 N.W.2d 90 (citation omitted). ¶10 The key holding of Mitchell relevant to this appeal is that [w]hen police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they m

2022Because Mitchell has failed to make even the first showing, the officer’s decision to “order a warrantless blood test to measure [Mitchell’s] BAC [did not] offend[] the Fourth Amendment.” Id.

2021Birchfield, 136 S. Ct. at 2185 ; Dalton, 383 Wis. 2d 147, ¶58 . ¶13 As we explained in State v. Levanduski, 2020 WI App 53 , ¶13 n.5, 393 Wis. 2d 674 , 948 N.W.2d 411 , in which we affirmed the use of a refusal for evidentiary purposes in a related OWI case, the right at issue is the right to be free from an unreasonable search: [U]nder Birchfield, Dalton could not suffer a criminal penalty due solely to his refusal to submit to a blood draw.

2021Birchfield, 136 S. Ct. at 2185 ; Dalton, 383 Wis. 2d 147, ¶58 . ¶13 As we explained in State v. Levanduski, 2020 WI App 53 , ¶13 n.5, 393 Wis. 2d 674 , 948 N.W.2d 411 , in which we affirmed the use of a refusal for evidentiary purposes in a related OWI case, the right at issue is the right to be free from an unreasonable search: [U]nder Birchfield, Dalton could not suffer a criminal penalty due solely to his refusal to submit to a blood draw.

2018As Justice Abrahamson has explained, "[t]he Padley court concluded that a driver's actual consent occurs after the driver has heard the Informing the Accused Form, weighed his or her options (including the refusal penalties), and decided whether to give or decline actual consent." State v. Brar , 2017 WI 73 , ¶ 116, 376 Wis. 2d 685 , 898 N.W.2d 499 (Abrahamson, J., dissenting). ¶ 103 That implied consent and actual consent are separate and distinct concepts is confirmed by an analysis of recent United States Supreme Court precedent in addition to Birchfield . 7 In Missouri v. McNeely , the Sup

2018As Justice Abrahamson has explained, "[t]he Padley court concluded that a driver's actual consent occurs after the driver has heard the Informing the Accused Form, weighed his or her options (including the refusal penalties), and decided whether to give or decline actual consent." State v. Brar , 2017 WI 73 , ¶ 116, 376 Wis. 2d 685 , 898 N.W.2d 499 (Abrahamson, J., dissenting). ¶ 103 That implied consent and actual consent are separate and distinct concepts is confirmed by an analysis of recent United States Supreme Court precedent in addition to Birchfield . 7 In Missouri v. McNeely , the Sup

2017Put simply, consent to testing had already been given, and it remained valid until withdrawn.10 ¶76 Inferring consent to testing from the conduct of driving appears essential to the validity of the warrantless blood test that occurred in State v. Disch, 129 Wis. 2d 225 , 385 N.W.2d 140 (1986), where this court upheld a blood test of a driver who was "in a stupor" and "did not seem able to concentrate." Id. at 236 .

2017Put simply, consent to testing had already been given, and it remained valid until withdrawn.10 ¶76 Inferring consent to testing from the conduct of driving appears essential to the validity of the warrantless blood test that occurred in State v. Disch, 129 Wis. 2d 225 , 385 N.W.2d 140 (1986), where this court upheld a blood test of a driver who was "in a stupor" and "did not seem able to concentrate." Id. at 236 .

2000The State contends that the blood test was admissible because Thorstad consented to the blood test, or in the alternative, because the blood test was justified under State v. Bohling, 173 Wis. 2d 529 , 494 N.W.2d 399 (1993).

2000The State contends that the blood test was admissible because Thorstad consented to the blood test, or in the alternative, because the blood test was justified under State v. Bohling, 173 Wis. 2d 529 , 494 N.W.2d 399 (1993).