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State court finds Fourth Amendment protects unconscious drivers

On Behalf of | Jul 6, 2020 | Breath Test Refusal/Implied Consent |

Last year, the U.S. Supreme Court ruled that, when a drunk driving suspect becomes unconscious, it creates “exigent circumstances” that make it unnecessary for the police to obtain a warrant for a blood test. This was after having found in a previous case that the police generally do need a warrant to obtain a blood test.

As we discussed at the time, the high court’s decision made it seem as if people have more constitutional protections when they’re awake than when they are unconscious.

The case involved a Wisconsin man who was arrested for drunk driving in 2013. A preliminary roadside test had indicated he was over the limit, but the officer needed an official test that would be admissible in court. So, he decided to take the driver to the hospital for a blood test.

On the way, the driver lost consciousness and could not be roused. The officer had the blood test performed anyway. Did that violate his constitutional rights?

The issue seemed to be whether Wisconsin’s implied consent law applied. Under that law, drivers are assumed to consent to chemical tests, and the mere fact of unconsciousness may not work as a withdrawal of that consent.

Ultimately, however, the Supreme Court did not decide whether the driver’s unconsciousness withdrew his consent for a chemical test, or whether that consent includes blood tests (which arguably it does not.) Instead, the court relied on the “exigent circumstances” argument, ruling that a driver who becomes unconscious creates a situation of emergency for the police that obviates the need for a warrant.

Now, the Wisconsin Court of Appeals has ruled that officers cannot have a blood test performed on an unconscious driver. It made a striking ruling: “the implied consent that incapacitated drivers are deemed to have given and presumed not to have withdrawn does not satisfy any exception to the Fourth Amendment’s warrant requirement.”

In other words, informed consent itself is not enough in Wisconsin to bypass the warrant requirement for a blood test. Therefore, the court determined that Wisconsin’s implied consent provision allowing a blood test on an unconscious driver is unconstitutional.

“Indeed, the clear majority of state courts to consider this issue within the last decade agree with the conclusion we reach today,” reads the opinion.

DUI and search and seizure law is always changing

Although this ruling only applies in Wisconsin, other state courts will consider its reasoning when determining whether their implied consent statutes allow unconscious drivers to be subjected to blood tests.

If you have been subjected to a blood test while you were unconscious or there was another problem with your blood alcohol test, be sure to talk to a defense attorney who understands the current law.

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