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 While consent to a blood draw is normally withdrawn when the Informing the Accused is read—a form that actually asks if the subject will submit to an evidentiary test—Mitchell was obviously unable to withdraw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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Risky Precedents: A Brief Overview of the 2018 Wisconsin Lame Duck Laws & the Separation of Powers Doctrine

The Wisconsin Capitol in Madison, Wis.On December 14, 2018, outgoing Wisconsin Governor Scott Walker signed into law three bills that were rapidly passed by the Republican-held state legislature during an extraordinary session following the November 7, 2018 election that resulted in Democrats winning each statewide elected seat. Along with serving various other goals of the Republican legislative majority, the trio of so-called “lame duck” laws were designed to curb the powers of incoming Governor Tony Evers’ administration before he took office in the following ways:

  • Transfer control over leadership appointments to the Wisconsin Economic Development Corporation (“WEDC”) from the executive branch to the legislature until September 2019. Then-candidate Evers campaigned on disbanding the WEDC.
  • Grant the legislature power to intervene in lawsuits in circumvention of the Wisconsin Attorney General’s office when state statutes are challenged. This provision of the law provides for the use of taxpayer dollars to pay private lawyers to defend the interests of the Republican legislative majority.
  • Give the legislature the ability to sign off on and decide how to spend court settlements – a power traditionally held by the Attorney General’s Office.
  • Provide the legislature the power to permanently block any regulations written by the state’s numerous administrative agencies, which are part of the executive branch.
  • Require the executive branch to get permission from the legislature to make any policy changes within the state’s health care and public benefit programs.

Since December 14, 2018, several lawsuits have been filed raising various legal challenges to the measures imposed by the lame duck legislation. One of the primary legal challenges to the lame duck legislation is constitutional in nature – i.e., that much of the new legislation’s limiting effects on the executive branch violate the principle of separation of powers embodied in the Wisconsin Constitution.

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Full(er) Disclosure: Wisconsin Invigorates the Brady Rule

Rugby player hiding ball under his shirtA Warren Court cornerstone has been “remastered and upgraded,” as they say, by the Wisconsin Supreme Court in a case that has riled the waters nationally. In Brady v. Maryland (1963), the Warren Court held that prosecutors must disclose exculpatory evidence to the defense. No hiding the ball. Over fifty years of case law, however, has occluded the rule with sundry conditions and qualifications that obscure its modest disclosure provision. More time is spent describing the ball than looking for it.

In State v. Wayerski (2019 WI 11), the Wisconsin Supreme Court scraped off Brady’s barnacles, overruled fifty years of precedent, and held that prosecutors must provide the defense with any information that is exculpatory or impeaching  — even if the defense could have found it as easily as the prosecutor.

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