The United States Supreme Court’s decision this past April in Missouri v. McNeely has had a substantial impact on the procedures used to obtain blood samples in OWI-related arrests, but has had very little effect on the actual drivers that are subject to these new procedures.
Implied Consent Law
As many readers may know, Wisconsin has an implied consent law that subjects drivers to penalties if they do not consent to provide one of the following blood alcohol samples to an officer under certain circumstances:
- A breath sample
- A blood sample
- A urine sample
Generally, if a driver does not consent to a valid request from law enforcement, they are issued a refusal ticket in addition to any other OWI-related citations they might receive.
Prior to the McNeely decision, refusing a request for a blood draw had little effect, because Wisconsin’s Supreme Court had authorized officers to forcibly take a blood sample from an individual suspected of OWI without first seeking a warrant. The rationale for allowing this type of warrantless search rested on the Wisconsin Supreme Court’s determination that the natural dissipation of alcohol from the body created an exigent circumstance that was so time sensitive that it outweighed the general requirement that all searches and seizures be done pursuant to a warrant. The McNeely decision rejected this rational, instead stating that any time a warrantless search is conducted, a court must individually evaluate the circumstances to determine whether the risk of losing evidence (such as through the natural dissipation of alcohol from the body) was sufficient in that case to outweigh the Constitutional requirement that searches be done pursuant to a warrant.
The result of this decision is that nearly all of Wisconsin’s counties have implemented systems allowing judges to electronically issue search warrants to law enforcement officers at any time of day or night, and generally in as little as 15 minutes. Thus, while McNeely has changed the procedures that law enforcement officials use to procure blood samples, it has not substantially altered their ability to actually obtain the BAC samples. Nevertheless, the systems used by various law enforcement departments to obtain these warrants are still relatively new, and there remains the possibility that either the officers or judges are not correctly implementing them. So, if you have been arrested for an OWI-related matter, and the arresting officer took a sample of your blood without your consent, make sure to contact an attorney to ensure that the procedures used in your case did not violate your constitutional rights.