Wisconsin operates under implied consent laws. That means a driver implicitly agrees to submit to field chemical tests if a police officer arrests them on suspicion of drunk driving. A driver can refuse to take these tests, but doing so will result in civil penalties being assessed, such as a driver’s license suspension.
Under Wisconsin Statute §343.305, implied consent also applies to an unconscious person and law enforcement suspects they have alcohol and/or drugs in their system. Under this law, an unconscious individual cannot withdraw consent, and therefore is assumed to have agreed to be subjected to chemical testing.
Recently, the constitutionality of this law has come into question. In July of 2018, the Wisconsin Supreme Court ruled it is legal for police to draw blood from an unconscious driver without a warrant or receiving their explicit consent.
The decision came after a man said his constitutional rights were violated when police took him to a hospital for a blood draw. The officers found the man on a beach, and he told them he’d pulled off the road because he was too drunk to drive. As the officers were taking the man to the hospital, he went in and out of consciousness. By the time they arrived, the man was completely unconscious, and the clinicians conducted a chemical test.
The man argued that the blood draw violated his Fourth Amendment protection from unreasonable searches and seizures. However, the state Supreme Court ruled that the test was constitutional. Chief Justice Patience Roggensack wrote that by “drinking to the point of unconsciousness, [the defendant] forfeited all opportunity…to withdraw his consent previously given.”
In April of 2019, the U.S. Supreme Court heard oral arguments for this case.
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