Wisconsin prosecutors are deciding how to deal with charging drunken driving suspects after the U.S. Supreme Court ruled Thursday police officers need a warrant to draw blood from suspects if they do not provide consent.
Based on a 5-4 ruling on a case from Missouri, law enforcement can no longer take warrantless blood samples from suspected drunken drivers without their consent.
Justice Sonia Sotomayor delivered the opinion of the court Thursday, joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan, with Justice Anthony Kennedy partly agreeing.
“When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” Sotomayor wrote.
Dana Brueck, spokesperson for the Wisconsin Department of Justice, said the department is still reviewing the decision and will advise law enforcement and district attorneys soon.
She said so far, the department believes there is still a chance to draw blood without a warrant, as long as there are reasons besides just alcohol leaving the body.
“Based on our review thus far, we believe the decision still allows warrantless blood draws, if the totality of the circumstances shows that there are exigent circumstances, and if those circumstances can be explained in a way that shows the normal dissipation of alcohol is not the only factor,” Brueck said.
Adam Gerol, Ozaukee County district attorney and president of the Wisconsin District Attorney’s Association, said multiple departments have communicated about the implications of the ruling, and how to strategize solutions.
“Since [Missouri v. McNeely] was released, and even before, there has been a flurry of communication among prosecutors and our counterparts in the Department of Justice,” Gerol said. “A lot of us have been shooting back and forth about ‘What do we do now? What would we do if this situation happened right now?'”
In Wisconsin, a suspected drunken driver who refuses to give a blood sample will receive a refusal ticket, a civil violation and could lose his or her driver’s license for up to 12 months, Gerol said.
Dane County District Attorney Ismael Ozanne said Dane County is working with judges and law enforcement to decide how to best abide by the ruling while still charging drunken driving suspects, even if suspects refuse to give a blood sample.
“Where I think this will have an effect is forced blood draws,” Ozanne said. “We will have to have law enforcement get a warrant to a judge, and get a signature to get the blood [under warrant] instead of a forced draw.”
Gerol said his county has a system in place to get warrants by telephone, and this ruling will make law enforcement tighten up that system.
The telephonic system can significantly reduce the period of time it takes to get a warrant than the traditional warrant system, but will still involve 10 to 20 late night phone calls to judges, Gerol said.
In the dissenting opinion, Chief Justice John Roberts wrote 31 states can use electronic warrants, including sending electronic copies to iPads or phone calls.
In counties like Milwaukee, there are complex and tight systems to control this already in place that won’t be affected as much as Ozaukee County, Gerol said.
The telephonic system can significantly reduce the period of time it takes to get a warrant than the traditional warrant system, but will still involve 10 to 20 late night phone calls to judges, Gerol said.
“This changes 40 years of doing things,” Gerol said. “The difference is that it will create more work for prosecutors, police and judges. … It will increase workload, and it won’t be trivial.”
