Unconscious Wisconsin Driver Loses Challenge to Alcohol Test

MADISON, Wis. (CN) – A police officer did not need a warrant to draw the blood of a drunken driver who fell unconscious, the Wisconsin Supreme Court ruled Tuesday.

In a 5-2 ruling affirming the conviction of Gerald Mitchell, Justice Patience Roggensack said the driver’s severe intoxication gave the arresting officer probable cause.

Drivers also voluntarily consent to blood alcohol tests when they drive on state roads, and Roggensack said Mitchell forfeited the opportunity to withdraw such consent.

Police had stopped Mitchell on a beach in Sheboygan County in May 2013 after receiving reports that he was driving his gray van while intoxicated. After a breath test revealed that Mitchell had a blood-alcohol level of 0.24, three times the legal limit, police officer Alex Jaeger arrested Mitchell and drove him to a hospital for a blood draw.

Though Jaeger gave Mitchell the opportunity to withdraw his consent to the procedure, Mitchell had fallen unconscious at the hospital and attempts at rousing him proved unavailing.

Mitchell appealed his DWI conviction meanwhile by accusing the state of having conducted a search barred by the Fourth Amendment. Prosecutors countered that the officer had probable cause to direct staff to draw blood because he had witnessed Mitchell in a severely drunken state.

Roggensack sided with the state in a 31-page opinion filed Tuesday.

“Mitchell chose to avail himself of the privilege of driving upon Wisconsin’s roads. Because he did so while intoxicated, by his conduct he consented to the effect of laws that are relevant to exercising that privilege,” Roggensack wrote. “He did not need to read them off one-by-one, and then sign a piece of paper acknowledging his consent to be subject to those rules and penalties for failing to follow them. By driving in Wisconsin, Mitchell consented to have samples of his breath, blood or urine taken upon the request of a law enforcement officer who had probable cause to believe he was intoxicated, unless he withdrew such consent.”

Justice Ann Walsh Bradley and Justice Shirley Abrahamson dissented. Calling a blood draw a “particularly intrusive search,” Bradley asserted that the drawing of Mitchell’s blood, while he was unconscious, violated his rights. Departing from the other five justices on the court, she said that “implied consent” under the Fourth Amendment was not the same as “actual consent.”

“By relying on the implied consent laws, the lead opinion attempts to create a statutory per se exception to the constitutionally mandated warrant requirement,” Bradley wrote.  “Thus, it embraces a categorical exception over the constitutionally required consideration of the totality of the circumstances. Consent provided solely by way of an implied consent statute is constitutionally untenable.”

Mitchell’s attorney Linda Schaefer and the Wisconsin Attorney General’s Office have not returned requests for comment.

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