Wisconsin Supreme Court strikes down law allowing warrantless blood alcohol testing of unconscious drivers

The Wisconsin Supreme Court unanimously struck down a state law provision Friday that allowed police to draw blood from unconscious drivers and test it for alcohol content without a warrant.

Under Wisconsin Statute § 343.305, an officer can request a blood sample from the driver of a vehicle involved in an accident resulting in the death or great bodily harm to another person. An individual who is unconscious or otherwise unable to withdraw consent was presumed not to have withdrawn consent under the law.

Many courts have addressed the issue of taking blood samples from drivers without consent, including Texas and Nevada. In 2017 the Wisconsin Supreme Court ruled that police officers could take blood samples from unconscious drivers without a warrant in certain circumstances, such as when a delay would lead to the destruction of evidence. However, on Friday, the Wisconsin Supreme Court ruled that the provision was unconstitutional.

The case decided Friday involved a 2014 car crash that killed one person. Police took blood samples from the surviving driver, who was unconscious and smelled of alcohol. The officer believed at the time that a warrant was not needed to draw the blood, because of Wisconsin’s incapacitated driver provision.

The trial court granted a motion to suppress the evidence, determining that the blood was taken without consent and without a search warrant. The court determined that this violated the Fourth Amendment. The appeals court reversed the trial court’s decision, but it still determined that the provision violated the Fourth Amendment and was unconstitutional.

On Friday, the Wisconsin Supreme Court concluded that the incapacitated driver provision “cannot be constitutionally enforced under any circumstances and is unconstitutional beyond a reasonable doubt.” Actual consent, which must be “unequivocal and specific,” was required by the constitution. The court said that consent “deemed” by the statute was not the same as actual consent. Additionally, absent a warrant or applicable exception, individuals have the constitutional right to refuse the search.

However, the good faith exception applied to the case, because the police officers reasonably relied on the statute before it was deemed unconstitutional. Because of this, the evidence would not be suppressed.