Wisconsin has a reputation for leniency when it comes to drunk driving, but two recent decisions by the state’s highest court could make it easier to obtain evidence in drunk driving cases and prosecute impaired drivers.
Warrantless blood draws OKed in some cases
David Howes was unconscious and seriously injured after hitting a deer with his motorcycle in 2013. While investigating the crash, a sheriff’s deputy discovered that Howes had three prior convictions for drunk driving. Under Wisconsin law, a driver with prior OWIs may not drive with a BAC over 0.02. One of the EMTs who transported Howes’ to the hospital reported a strong smell of alcohol on Howes’ breath.
In the ER, the deputy asked hospital staff to take a blood sample from the still unconscious Howes. The results showed a BAC of 0.11 two hours after the crash. Because he didn’t consent and the deputy didn’t seek a warrant, at trial Howes argued that the blood results weren’t admissible. The trial court agreed, but the state appealed the decision.
In March the court ruled on State v. Howes, agreeing with the state that exigent circumstances justified a warrantless blood draw. As such, the results of the test could be used against Howes. The court noted that the time required to investigate the accident and transport Howes to the hospital created a risk that evidence—in this case Howes’ BAC—would be destroyed.
The decision wasn’t unanimous, however. Two justices argued that because Howes was unconscious, he had no opportunity to give or refuse consent. In addition, the justices felt that the sheriff’s deputy had plenty of time to seek a warrant before asking the hospital to take a sample. Howes’ lawyer plans to appeal to Wisconsin’s ruling to the U.S. Supreme Court, which ruled in 2013 that a warrant is usually required to draw blood from a suspected drunk driver.
Juries can hear about breath test refusals
Early this month in State v. Lemberger the Wisconsin Supreme Court reaffirmed that prosecutors can bring up a DUI suspect’s refusal to take a breath test at trial.
In 2014, Gary Lemberger was pulled over for what turned out to be his fourth OWI offense. During his trial, the prosecutor told the jury that Lemberger’s refusal of a breath test after his arrest showed “a guilty conscience” and was “proof positive that [Lemberger] knew he had been drinking.” The trial judge also instructed the jury that they could consider the refused test in their deliberations.
Lemberger appealed for a new trial, arguing that he had a constitutional right to refuse a breath test and that his refusal couldn’t be presented as evidence of his guilt. But under Wisconsin’s implied consent law, drivers cannot legally refuse a breath test once they’ve been arrested.
Questions persist on implied consent, warrantless blood draws
Wisconsin’s recent rulings reflect the persistent questions and concerns about implied consent and warrantless blood draws. In 2015, thirteen states supported a request by Colorado to have the U.S. Supreme Court review its 2013 decision on blood draws, but the court declined. Several state courts have struck down warrantless blood draw provisions in “no refusal” and implied consent laws. Wisconsin’s rulings seem to run counter to that trend, and it will be interesting to see if the U.S. Supreme Court revisits the issue.
