Wisconsin Court Rules Drivers Can’t Block Analysis of Blood Draw

MADISON, Wis. (CN) – The Wisconsin Supreme Court ruled Tuesday that a driver cannot invoke Fourth Amendment protections against unreasonable searches to withdraw their consent to a blood test after the blood has already been drawn but before it has been analyzed.

In the underlying case, Jessica Randall was arrested for operating a vehicle while intoxicated and gave the officer knowing permission to take a sample of her blood for the purpose of determining its alcohol concentration.

But before the Wisconsin State Laboratory of Hygiene could conduct its analysis of the blood draw, Randall and her counsel sent a letter two days later revoking the consent that she had given during her arrest. The letter also demanded the immediate return or destruction of the sample.

The crime lab responded that it needed the Fitchburg Police Department’s authorization before releasing the sample and did not address the issue of consent before proceeding to test the blood sample, which turned up a blood-alcohol level of 0.210, well above the state’s 0.08 limit.

The Dane County district attorney then charged Randall with her third OWI offense. However, the circuit court granted Randall’s motion to suppress the results of the blood test as an unreasonable search, agreeing with her that the state had no constitutional basis to discover the amount of alcohol in her blood sample after she revoked her consent.

The appellate court affirmed the decision before the matter moved to the state’s highest court, which reversed Tuesday in a 5-1 decision.

In his 34-page majority opinion, Justice Daniel Kelly reasoned that the lower courts erred in suppressing the results of the blood test and that Randall had no grounds to block the results under the Fourth Amendment.

Kelly’s main sticking point arises in Randall’s theory that she submitted to two distinct searches related to her arrest: one when a medical technician drew her blood and another when the lab tested for the sample’s alcohol concentration. Under Randall’s rationale, the latter was unconstitutional given her revocation of consent.

But Kelly wrote that the blood draw and subsequent process of discovering the information in her blood constitute only one search.

He rejected Randall’s idea that there were two separate searches and invasions of privacy, saying “this has never been the law, and her argument fails to account for the age-old principle that an arrest reduces the suspect’s privacy interests.”

According to Kelly’s analysis, once someone is arrested for a crime, the state has a vested interest in gathering evidence related to the incident, which in this case extends to the contents of an arrestee’s blood.

“If an arrestee may prevent the state from knowing the amount of alcohol in her blood, then all of these cases are wrong and some additional justification is necessary to conduct a blood test,” the judge said, wary of recognizing “an arrestee’s right to keep the instrumentalities and evidence of a crime secret from the police.”

Kelly concluded that “although the state must comply with the Fourth Amendment in obtaining a suspect’s blood sample, a defendant arrested for intoxicated driving has no privacy interest in the amount of alcohol in that sample…therefore the state did not perform a search on Ms. Randall’s blood sample” within the definition of the Fourth Amendment when it determined the alcohol level of the sample.

As the only member of the court to buck against the majority opinion, Justice Ann Walsh Bradley stated plainly in her dissent that “without a warrant or a constitutional exception to the warrant requirement, a majority of this court countenances the search of a person’s blood by the government,” which she considers unconstitutional under the Fourth Amendment.

Bradley disagreed with the majority’s logic that a defendant forever gives up the right to object to a blood analysis after consenting to having blood drawn.

“The lead opinion arrives at its flawed conclusion by conflating the ‘seizure’ of Randall’s blood, which was accomplished lawfully, with the ‘search’ conducted through chemical testing,” she wrote.

“Turning a blind eye to everyday realities,” Bradley continued, “the lead opinion compounds its errors by discounting in this post-HIPAA era society’s reasonable expectation of privacy in the contents of a person’s blood. Ultimately, it minimizes the significant privacy interest previously identified by the United States Supreme Court.”

Adam Welch, Randall’s counsel with Madison firm Stroud Willink & Howard, could not offer comment on the high court’s opinion as of Tuesday afternoon.

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