On Point: b. Blood Draw

Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)

Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?

State v. Melvin P. Vongvay, 2015AP1827-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity (including briefs)

Wisconsin Stat. § 885.235(1g) makes a blood alcohol test automatically admissible in a drunk driving prosecution if the blood is drawn within three hours of the alleged driving. The court here holds that an officer who was running up against the end of that three-hour window was justified in drawing blood without seeking a warrant.

State v. Andy J. Parisi, 2016 WI 10, 2/24/2016, affirming an unpublished court of appeals decision; case activity (including briefs)

Police found Andy Parisi unconscious and having trouble breathing. Almost two and a half hours later, at a hospital, an officer had his blood drawn to test for heroin. The state supreme court now holds that the circumstances of this case–which seem to boil down to the fact that heroin naturally dissipates within the bloodstream–were “exigent,” justifying the warrantless search.

The Court granted certiorari and consolidated three cases presenting identical questions in different factual permutations:

Question presented (Birchfield v. North Dakota); (Beylund v. Levi); (Bernard v. Minnesota):

Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

State v. James Michael Warren, 2014AP792-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), which was the law at the time of Warren’s arrest, a person must present their reasonable objection and the basis for the objection at the time of the blood draw, and failure to do so means the person can’t raise it later in the case.

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 10; case activity (including briefs)

Issue (composed by On Point)

Was a warrantless blood draw of a person suspected of having ingested heroin justified because, at the time of the search, State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), held that the dissipation of alcohol constituted a per se exigency that allowed a warrantless search, and police could reasonably extend Bohling‘s holding to a search for any drug?

County of Sauk v. Thomas D. McDonald, 2014AP1921, District 4, 5/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)

McDonald was arrested for OWI and taken to the county jail, where his blood was drawn by a paramedic employed by the city’s ambulance service. Contrary to McDonald’s claims, his blood draw was constitutionally reasonable and the paramedic who performed the blood draw was a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

State v. Zoltan M. Peter, 2014AP1589-CR, 1/1/15, District 2 (1-judge opinion; ineligible for publication); click here for briefs and docket

Peter was found guilty of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood. He moved to suppress the marijuana that the police seized from his car, arguably in violation of the plainharm view doctrine and lost. The court of appeals found the argument baffling.

State v . Randall L. Shepherd, 2014AP962, 2/5/15, District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

A another day. Another challenge to a pre-McNeely warrantless blood draw bites the dust.

State v. Tyler M. Pasch, 2014AP1193-CR, District 3, 2/3/15 (1-judge decision; ineligible for publication); case activity (including briefs)

Another day, another decision holding the good-faith exception to the exclusionary rule applies to blood drawn without a warrant or exigent circumstances because the blood draw happened before Missouri v. McNeely, 133 S. Ct. 1552 (2013), effectively overruled State v. Bohling,