948 N.W.2d 359
Wis. Ct. App.2020Background
- Late-night single-vehicle crash; Deputy McElroy found Richards severely injured in the driver’s seat with open beer cans and smelled of alcohol. EMS arrived and Richards was fading in and out of consciousness.
- Richards lost consciousness in the ambulance en route to the nearby Wild Rose Hospital; EMS planned immediate airlift (~50 miles) to Theda Clark Medical Center.
- McElroy concluded there was probable cause for OWI and, believing there was insufficient time to obtain a warrant before airlift, requested hospital staff draw blood while Richards remained in the ambulance outside Wild Rose.
- Blood drawn around 12:55 a.m. later tested at BAC .196. Richards moved to suppress the sample as a warrantless search.
- The circuit court denied suppression finding exigent circumstances; Richards pleaded guilty to OWI (12th) and appealed. The court of appeals affirmed, applying the U.S. Supreme Court’s Mitchell framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a warrantless blood draw from an unconscious driver violated the Fourth Amendment | Exigent circumstances justified warrantless blood draw under Mitchell because probable cause, unconsciousness, imminent hospital/airlift, and lack of reasonable opportunity for breath test were present | Warrant required; blood drawn without judicial authorization violated Fourth Amendment | Warrantless blood draw lawful: Mitchell factors satisfied and Richards failed to show the two defendant-burdened exceptions |
| Probable cause that Richards committed drunk-driving | Smell of intoxicants, open cans, severe injuries, dispatch info re: prior OWIs supported probable cause | Agreed probable cause existed | Probable cause satisfied |
| Whether Richards was unconscious and required hospital transport before a breath test | Richards was in and out of consciousness, then unconscious in ambulance; needed immediate hospital care and imminent airlift made breath testing unreasonable | Argues he was conscious at blood draw or could have been breath-tested earlier at scene | Court found he was unconscious at time of draw and hospital transport was necessary; no reasonable opportunity for an evidentiary breath test |
| Whether Richards met his burden to show blood would not have been drawn for medical reasons and that a warrant application would not have interfered with other duties | State: Richards failed to show these points and record supports medical necessity and time constraints | Richards: waiver of warrant unjustified; local warrant process is quick (20–30 minutes) and could have been used | Richards failed to show either factor; court found warrant application would likely have interfered and blood would have been drawn for medical care |
Key Cases Cited
- Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019) (plurality rule allowing warrantless blood tests for unconscious drivers when specified factors are met)
- Missouri v. McNeely, 569 U.S. 141 (2013) (alcohol naturally dissipates in bloodstream; dissipation can create exigent circumstances)
- Schmerber v. California, 384 U.S. 757 (1966) (blood extraction is a search; blood tests are highly effective for measuring intoxication)
- State v. Brar, 376 Wis. 2d 685 (2017) (blood draws are searches presumptively unreasonable without a warrant)
- State v. Dalton, 383 Wis. 2d 147 (2018) (warrant-application delays can contribute to exigent-circumstances analysis)
- State v. Tullberg, 359 Wis. 2d 421 (2014) (two-step standard of review for suppression rulings: uphold factual findings unless clearly erroneous; independently review constitutional application)