Unconscious Mistake: Wisconsin Implied Consent Statute Upheld for Wrong Reasons

A man being arrested by the Chicago police department.It’s no secret that Wisconsin has long been known for having some of the most lenient drunk driving laws in the country. Throughout the spring semester I saw firsthand just how limited the consequences can be—compared to other states like my native Illinois—as first-time offenders were simply cited for ordinance violations in Milwaukee Municipal Court and not charged criminally. However, there have been efforts in recent years to crack down on drunk driving in a state famous for its beer. State legislators have passed a number of measures to deal help law enforcement, and this past week one such measure found itself before the United States Supreme Court.

In its decision in Mitchell v. Wisconsin, the Court upheld Wisconsin’s implied consent statute and ruled that states are not restricted from taking warrantless blood samples from unconscious drunk-driving suspects by the Fourth Amendment.

In 2013, Mr. Mitchell was arrested in Sheboygan Wisconsin after police, who were responding to reports of an intoxicated driver, found him drunk and disheveled at a local beach. Mitchell stated that he wound up there after he felt too drunk to drive. The officer decided not to preform sobriety tests at the scene because Mitchell’s condition would have made it unsafe to do so. Instead, a preliminary breath test was administered with a resulting BAC of 0.24. While being transported to the police station Mitchell’s condition deteriorated and he was eventually taken to the hospital. Upon arrival, Mitchell was completely unconscious. He was then read the standard Informing the Accused form and a blood sample was taken, all without him regaining consciousness. That sample indicated a BAC of 0.22. While consent to a blood draw is normally withdrawn when the Informing the Accused is read—a form that actually asks if the subject will submit to an evidentiary test—Mitchell was obviously unable to withdraw consent in his condition.

But why was Mitchell required to withdraw consent in the first place?

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Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers.  The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi.  Mr. Flowers has been incarcerated for over 20 years, as he awaits trial.  Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black.  Douglas Evans, the prosecuting attorney of all six trials, is white.

APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case.  The podcast explores the nature of the circumstantial evidence that the prosecution relied upon.  It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered.  But, for the purpose of the appeal, sufficiency of evidence is not at issue.  The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.”  And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court.

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The Costs of Janus v. AFSCME

Photo of statue depicting a bust of Janus, the two-headed Roman God.On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society.  The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.”  The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME.  What follows are my prepared remarks.

In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees.  The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.

In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.

Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party.  One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.

This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case.

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