“Consent” is a big deal in our justice system. In fact, if you’re reporting a crime, one of the first questions they ask you is that if you gave the person permission (consent) to do whatever it was they did.

And there’s also a concept called “implied consent”. “Implied consent” means that you’re considered to have agreed to something, even though you haven’t explicitly agreed.

For example, if you’re in a car accident and you’re unconscious, doctors don’t have to wake you up, get you to where you can talk, and then ask permission to stop the massive bleeding caused by the accident. Legally speaking, your consent to medical treatment is implied. 

And that brings us to the case in question.

In 2014, there was a car crash just outside Madison, WI. The driver of a minivan crossed the center line and hit another car, killing the driver of the other car. The minivan’s driver was thrown from her vehicle, and was found laying in a ditch by the side of the road. When they rushed her to the hospital, she was unconscious – and a police officer instructed the hospital to test the woman’s blood for alcohol. It’s important to note that the officer didn’t get a warrant for the blood draw, but under Wisconsin’s implied consent law at the time, this blood draw was legal. Unconscious drivers are deemed to have consented to have their blood taken.

She was over the blood alcohol limit, and it was also discovered that she had narcotics in her system. The police therefore charged her with “homicide by intoxicated use of a vehicle” and 11 other charges. These included an OWI 4th offense, and three charges based on the narcotics found in her system.

Of course just because the law says something is legal, that doesn’t mean you can’t challenge it! Her lawyer moved to suppress the blood test results because she was unconscious and couldn’t consent, further arguing that Wisconsin’s law was unconstitutional based on the Fourth Amendment’s warrant requirement.

The state argued that even if the law were to be considered unconstitutional, the police officer had a “good-faith exception”. Basically that means that the officer wasn’t overtly trying to do something illegal. In fact, he was following the law as written. The court therefore shouldn’t hold the lack of a warrant – which would’ve almost certainly been granted – against him.

The circuit court didn’t agree with the “good-faith exception” argument, so they agreed to suppress the blood test results.

A state appeals court saw it differently. They agreed that Wisconsin’s incapacitated driver provision is unconstitutional. However, the appeals court ruled that a “good faith exception” to the warrant requirement applied because “the officer who ordered the warrantless blood draw acted in objective good-faith reliance on the incapacitated driver provision.” In other words, the officer was following the law as written – which shouldn’t be held against him.

The case moved to the Wisconsin Supreme Court, which ultimately agreed with the state appeals court and decided that the “implied consent” provision of Wisconsin’s incapacitated driver law is unconstitutional, but that the “good-faith exception” applied in this case. This means that the driver’s conviction (based on the blood draw) stands, but that in the future warrants will be required.

The question is, why does this all matter? I mean…if a person gets thrown from a car and smells like alcohol, why is it important that a police officer not be able to demand a blood draw?

The answer is that this is part of our legal system’s checks and balances. The same principle that protects this woman’s right to not have her blood drawn without a warrant is the same principle that prevents your local police officer from kicking your door down and sifting through your stuff to see if you may have committed a crime.

By requiring a judge – somebody who isn’t “in the moment”, and is likely much cooler-headed – to agree to the blood draw, it protects the public’s constitutional rights. And it protects them even if they’re unconscious.

This is also a good reminder that just because the law says you’re guilty, it’s not a foregone conclusion. The law can be wrong. It can even be wrong for a long, long time before it’s fixed. And fixing it requires people that have been unjustly charged to challenge the system. Obviously not every challenge results in a law being changed, but without cases like this we would have far, far fewer liberties!

This is one of the reasons I practice criminal defense law. It’s not just about the people who commit crimes – it’s about protecting everybody else as well. I hope you never get into a jam where you need a lawyer, but if you do – and you need somebody who will fight hard for your rights – please don’t hesitate to give me a call!

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