Wisconsin Drunk Driving Law Turned Upside Down

For virtually decades, it has been common knowledge in Wisconsin that involuntary blood draws could occur in a drunken driving incident when the individual refuses to consent to a voluntary blood draw. The reason was due to exigent circumstances and the dissipation of the most important evidence in drunken driving prosecution — the level of alcohol within an individual's system.

For many years, the courts have ruled that the dissipation of the alcohol was a sufficient exigency to allow for a warrantless involuntary blood draw. Most jurisdictions have utilized this method in second and subsequent offenses, and some jurisdictions have even begun utilizing warrantless involuntary blood draws for first offenses. This not only resulted in the state being able to obtain the level of alcohol in an individual's blood, but also resulted in a refusal charge. The individual was then prosecuted for refusing to consent to the blood draw, and the state was able to obtain the level of alcohol in the individual's blood.

This method has been completely turned on its head with the recent U.S. Supreme Court case in Missouri v. McNeely . The Court, in a virtually unanimous decision, indicated that the dissipation of alcohol in a person's bloodstream, in and of itself, is not a sufficient exigency to justify a nonconsensual and warrantless seizure of the blood sample in a drunk driving prosecution. The Court made clear that in most cases, the police will have to obtain a search warrant prior to obtaining an involuntary blood sample from a suspected drunk driver, although that may not always be the case. Requiring a search warrant will, obviously, place extra stress on prosecutors and judges and will likely affect how defense attorneys advise their clients.

This is especially true in the cases of clients who have prior offenses. Most police agencies and prosecutors have adjusted already to this change by using telephonic search warrants. However, it does provide the defense an opportunity to challenge the issuance of the search warrant, whether it was obtained properly, whether there was any disregard of the truth and whether the search warrant was properly drafted and executed.

Prior to the decision in McNeely , the state would rely upon exigent circumstances and most circuit courts would rubber stamp that decision. The analysis has now changed as to whether the police had timely applied for the search warrant, whether probable cause was sufficiently stated in the search warrant and whether it was executed in a proper fashion. But again, it does provide the defense the opportunity — albeit small — to challenge the drawing of the blood and the subsequent results obtained in these cases. Certainly, McNelly is the most significant decision in drunk driving cases in the last decade. While this may not mean a major overhaul in drunken driving prosecutions, it certainly changes the dynamics in these cases and provides the defense the opportunity to scrutinize involuntary blood draws. This is especially true in cases where the individual has prior offenses. Because the U.S. Supreme Court overturned decades of precedent, one would believe that it would have been a close decision. However, the case was overturned on an 8-1 decision, which makes it likely that this decision will not be altered in the near future.

The Court in McNeely rejected the one-size-fits-all argument made by Missouri as an exception to the search warrant requirement in the Fourth Amendment when dealing with the dissipation of alcohol. While the Court recognized the importance of the government's interests in prosecuting drunk driving, it indicated that an individual's privacy interests — especially when it involves invading the personal body space of an individual and piercing the skin with a needle —- are at stake. This trumps the government's interests and could have far-reaching implications in the future.

Most large agencies will adapt to this situation and resort to telephonic search warrants. However, smaller agencies without the resources or abilities to do so will be at a significant disadvantage. If a search warrant is not obtained prior to the involuntary draw, it will clearly put the government at a significant disadvantage and severely jeopardize the drunk driving prosecution. The largest onus will fall upon judges and circuit courts, who will be called at all times of the day to record a search warrant application and ensure that the warrant and recording of the officer is filed in a timely fashion. Additional costs will be required and the defense should be on alert to closely inspect the recording and filing of the warrant. This will likely result in challenges in virtually every involuntary draw case where a search warrant is obtained telephonically.

It is a gross understatement to indicate that this decision was both shocking and unexpected. It will have implications reaching far beyond drunk driving. If you find yourself in a similar situation and have prior offenses, you should contact Bucher Law Group, LLC, and seek advice before consenting to a voluntary blood draw. It may be in your best interests to refuse to force the authorities to obtain a telephonic search warrant and provide you the opportunity to challenge the search warrant under McNeely. This is likely one of the most significant decisions in traffic and drunken driving law in the last few decades and should not be underestimated.

Bucher Law Group, LLC, is very familiar with the McNeely case and its impact on Wisconsin law. Should you need advice or consultation in this area, we have the experience to offer you sound legal advice. Paul Bucher, President and Owner, held the position of District Attorney for Waukesha County for 28 years and is intimately familiar with the drunken driving laws in Wisconsin. All legal staff is highly experienced in this area and can answer any of your questions.

Feel free to contact Bucher Law Group, LLC, at any time for sound legal advice on this issue or any other legal issue you may be facing.