Defending Wisconsin's Implied Consent Law
State v. Howes
Wisconsin's implied consent law provides that drivers implicitly consent to tests of their blood alcohol content (BAC) when they drive on Wisconsin highways. When a driver is arrested for drunk driving, they are given the option of submitting to the test or revoking their consent and losing their driving privileges. When a driver is unconscious, the law presumes that the driver has not revoked their consent, and officials are permitted to take a blood sample to test the driver's BAC.
Howes, having been found unconscious after a motorcycle accident and arrested for driving drunk, was presumed not to have withdrawn his consent and therefore had his blood drawn as part of a BAC test. The BAC test revealed that Howes had violated Wisconsin's laws against driving while intoxicated, and he was prosecuted. Howes sought to suppress the BAC test evidence, claiming that the blood draw violated his Fourth Amendment right to be free of unreasonable searches and seizures. The State argued that Wisconsin's implied consent law permits law enforcement officers to undertake a blood draw because the driver has consented to the search, a well-known exception to the Fourth Amendment's warrant requirement. Howes argued that an unconscious driver is incapable of consenting or withdrawing consent, and therefore, as applied to unconscious drivers, Wisconsin's implied consent law is unconstitutional.
Status: In a divided opinion, the Wisconsin Supreme Court upheld the blood draw in this case. A plurality of Justices upheld the blood draw on the ground that exigent circumstances existed to warrant the blood draw. Two concurring Justices believed that Howes had consented under Wisconsin's implied consent statute, and that the implied consent statute is constitutional. Three dissenting Justices believed that Wisconsin's implied consent law is unconstitutional.