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Wisconsin's implied consent law allows police to draw a suspected drunk driver's blood if they are unconscious. The state supreme court may review the legality of this law, which could be before the court in a third consecutive session.

Under state law, any motorist is presumed to have given consent to tests on their breath, blood or urine for determining the amount and presence of alcohol or drugs in their system. A suspected impaired driver may withdraw this implied consent and face arrest and the use of the refusal as evidence against them. These tests may be performed on an unconscious person without a warrant if the police have probable cause to make an arrest because the law presumes that these drivers gave their consent.

In a 5-2 decision in 2017, the state supreme court upheld the warrantless test of an unconscious driver. Two justices relied on state law, but the three other justices found that the alcohol was dissipating from the driver's blood stream and the time needed for a warrant would result in the loss of this evidence.

The court upheld the warrantless blood draw of another unconscious driver in July. Like the other case, three justices relied on the state's implied consent law, but a fourth justice said that the blood draw was justified because of the dissipation of alcohol.

The appeals court certified this third case for appeal to the state supreme court to determine whether the Fourth Amendment prohibition against unlawful searches and seizure prevents the use of blood tests on unconscious motorists. The case was placed on hold to await the outcome of the other appeals.

This appeal concerns a motorcyclist who crashed his motorcycle in 2013. He had five earlier OWI convictions and showed signs of intoxication. He was conscious when police arrived but later lapsed into unconsciousness after first responders gave him a sedative.

He was not arrested but airlifted to a hospital. Police read him the required legal notice even though he was unconscious. Medics drew his blood and police placed a citation in his shirt pocket.

Certain facts and evidence can determine whether a police stop violates constitutional rights. Motorists facing drunk driving charges should seek legal assistance immediately.

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Kirk Obear, Attorney at Law
603 South 8th St
Sheboygan, WI 53081

Phone: 920-395-3004
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