State v. David W. Howes
2017 WI 18
Wis.2017Background
- On July 7, 2013 David Howes was found seriously injured and unconscious after a motorcycle–deer crash; EMS treated and transported him to a hospital.
- Deputy Schiro investigated the scene, received bystander/EMT/nurse reports of an odor of intoxicants, and checked DOT records en route to the hospital, learning Howes had three prior OWI/PAC convictions (lowering his PAC to 0.02%).
- At the hospital the deputy concluded he had probable cause to arrest Howes for operating with a prohibited alcohol concentration (PAC) and arrested him around 10:15 p.m.; Howes remained unconscious and intubated.
- The deputy asked hospital staff to draw blood without a warrant; the sample was obtained about an hour later and tested 0.11% BAC (above the 0.02% PAC threshold).
- The circuit court granted Howes’ suppression motion, holding the statutory implied-consent provision allowing warrantless blood draws from unconscious persons was unconstitutional absent exigent circumstances and found none.
- The Supreme Court of Wisconsin reversed, holding (1) there was probable cause to arrest and (2) under the totality of circumstances the warrantless blood draw was reasonable under the exigent‑circumstances/destruction‑of‑evidence doctrine and therefore admissible.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Howes) | Held |
|---|---|---|---|
| Probable cause to arrest for PAC (0.02%) | Facts (accident, multiple observers smelled alcohol, DOT record showing 3 priors) gave probable cause for arrest | No probable cause because unconsciousness limited observable indicia; prior-record reliance disputed | Probable cause existed based on totality: accident + multiple reports of odor + prior convictions lowering PAC to 0.02% |
| Warrantless blood draw: exigent‑circumstances (destruction of evidence) | Medical delay, ongoing treatment, unconsciousness, and low PAC made delay to obtain a warrant likely to dissipate evidence | Statute required a warrant absent true exigency; police could have obtained telephonic warrant; prosecution didn’t prove exigency | Warrantless blood draw was reasonable under Fourth Amendment/Wis. Const. art. I, §11 given totality (critical injuries, treatment, delay, low PAC risk of rapid dissipation) |
| Constitutionality of implied‑consent unconscious‑driver provisions (§ 343.305(3)(ar),(b)) | Statutory implied consent valid: consent may be fairly inferred from the choice to drive with statutory notice; presumption of non‑withdrawal for unconscious drivers is reasonable | Statutory “implied consent” cannot substitute for actual voluntary consent for a significant bodily search; unconscious persons cannot give or withdraw consent; statute unconstitutional as applied/facially | Majority did not decide facial validity (unnecessary); concurrence would uphold statute as constitutional (consent-by‑conduct); dissent would invalidate consent basis and suppress evidence |
| Procedure/due process on appellate decision to invoke exigency sua sponte | State urged exigency alternative; court should resolve based on record | Howes argued appellate court should not raise dispositive issues sua sponte or decide exigency without adversarial development | Dissent criticized majority for deciding exigency sua sponte and for doing so without evidence on warrant availability; majority nonetheless independently reviewed facts and held exigency satisfied |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (warrantless blood draw reasonable where defendant hospitalized and delay threatened evidence dissipation)
- Missouri v. McNeely, 569 U.S. 141 (2013) (dissipation of alcohol does not create a per se exigency; exigency requires case‑by‑case assessment)
- Birchfield v. North Dakota, 579 U.S. 438 (2016) (searches reasonable when consent; blood draws more intrusive—warrants or exigency required absent valid consent)
- State v. Tullberg, 359 Wis. 2d 421 (2014) (Wisconsin standard: warrantless blood draw presumptively unreasonable; apply exigent‑circumstances framework)
- State v. Kennedy, 359 Wis. 2d 454 (2014) (four‑factor reasonableness test for warrantless blood draws in OWI cases)
- State v. Bohling, 173 Wis. 2d 529 (1993) (framework for blood draws incident to arrest; first‑factor substitution of probable cause)
- State v. Padley, 354 Wis. 2d 545 (Wis. Ct. App. 2014) (court of appeals view that implied consent alone may be insufficient to justify warrantless blood draw; discussed in concurrence and dissent)