League Files Amici Brief in U.S. Supreme Court
The League of Wisconsin Municipalities, City of Eau Claire and Wisconsin Towns Association recently filed a joint amici brief in Mitchell v. State of Wisconsin , an important case before the United States Supreme Court. Douglas Hoffer, Eau Claire Deputy City Attorney, authored the brief.  
At issue in the case is whether Wisconsin’s implied consent law, which authorizes warrantless blood draws from an unconscious impaired driving suspect, violates the Fourth Amendment’s prohibition against unreasonable governmental searches.
Wisconsin is one of many states with an implied consent law. Under Wisconsin’s implied consent law, persons who operate a motor vehicle upon Wisconsin’s public highways are deemed to have given consent to breath, blood or urine tests to determine the presence or quantity of drugs or alcohol in their blood or breath, when requested to do so by a law enforcement officer under certain circumstances. Wis. Stat. § 343.305(2). In addition, the statute creates a presumption that a person who is unconscious or otherwise incapable of withdrawing consent has not withdrawn consent. Wis. Stat. § 343.305(3).
Our brief urged the U.S. Supreme Court to overrule current precedent, McNeely , [1] and determine that the natural dissipation of alcohol and drugs constitutes a per se exigency permitting warrantless blood draws. We argued that McNeely should be overturned because it does not provide clear guidance for law enforcement, involves four separate opinions, and does not sufficiently consider the impact of the rules it articulated on drug impaired driving investigations. Circumstances in impaired driving cases are often typical, and the Court should provide clear guidance on how police should handle them. Additionally, we argued that the McNeely approach leads to delays which result in evidence destruction, confusion for law enforcement and courts on what the McNeely standard permits, and simultaneously provides little judicial oversight. The minimal judicial oversight provided in most cases does not justify the inevitable destruction of relevant evidence, the increased litigation the confusing McNeely standard creates, and the burden placed on the judiciary, particularly in rural areas with few judges. We explained that overruling McNeely will eliminate the need for the Court to consider the implied consent law but urged the Court, if it examines the implied consent issue, to adopt the State of Wisconsin’s recommended approach and determine that the implied consent law’s application to an unconscious driver is valid either as a consent search, or as a reasonable condition to combat intoxicated driving.

Alternatively, we requested that the Court adopt the standard articulated in Chief Justice Roberts’ opinion in McNeely . If a police officer reasonably believes he or she cannot obtain a blood draw warrant without delaying the blood draw, that constitutes an exigency permitting a warrantless blood draw. We argued that adopting a per se exigency standard in impaired driving cases reasonably considers the importance of timely blood draws in drug impaired driving cases and also recognizes that it can be difficult for police officers to precisely determine what combination of alcohol and drugs an impaired driving suspect has consumed, especially where the suspect is unconscious.

Finally, we asked the Court to be mindful of how a decision which precludes warrantless blood draws of unconscious OWI suspects might impact OWI enforcement in Wisconsin where first offense impaired driving violations are charged as a civil forfeiture. If warrantless blood draws of unconscious drivers are not permissible and blood draw warrants are unavailable for civil OWI offenses, Wisconsin will not be able to obtain blood evidence for unconscious civil OWI defendants.

This case has generated a lot of interest, with amicus briefs filed by, among others, the ACLU, DUI defense lawyer associations, and Mothers Against Drunk Driving. The National Conference of State Legislatures, International City/County Management Association, International Municipal Lawyers Association, and National District Attorneys Association also filed a joint amici brief.

[1] In Missouri v. McNeely , 569 U.S. 141 (2013), the U.S. Supreme Court held that natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency in this context must be determined case by case based on the totality of the circumstances.