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The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald


Implied consent laws set dangerous precedent for abuse of power

Wisconsin needs to lower number of DUIs, but violation of Fourth Amendment not the right course of action
Marissa Haegele

In 2013, Wisconsin police were dispatched after witnesses watched Wisconsin resident Gerald Mitchell, who appeared to be highly intoxicated, get into his car and drive off. Mitchell was later convicted of operating a vehicle while intoxicated and with a prohibited alcohol concentration, as a blood draw confirmed his blood alcohol content to be 0.222.

But here’s the catch: Mitchell never consented to have his blood taken, and police had no warrant to do so.

Prior to his trial, Mitchell moved to have the results from the warrantless blood draw suppressed on the grounds that it violated the Fourth Amendment, which protects against illegal search and seizure.


In response to the motion, the state maintained that the blood draw was pursuant to Wisconsin statute 343.305, which explains that any person who operates a motor vehicle on a state highway is deemed to have given consent to tests of sobriety — even if said driver becomes unconscious.

Wisconsin’s Supreme Court upheld Mitchell’s conviction under the determination that Wisconsin’s implied consent statute does not violate the Fourth Amendment. But Mitchell has now taken the case to the Supreme Court of the U.S., which has agreed to hear it.

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Versions of the implied consent statute are present in the state laws of 29 other states. In recent years, seven state courts have deemed warrantless blood draws unconstitutional, while six others have upheld their constitutionality. As such, Mitchell vs. Wisconsin has the potential to hold considerable national weight.

In the case of Birchfield vs. North Dakota, Justice Samuel Alito held the opinion that while the Fourth Amendment does allow for warrantless breath tests, a warrantless blood draw is a step too far.

“The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving,” Alito wrote. “The impact of breath tests on privacy is slight, and the need for BAC testing is great. But we reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.”

Dissenting from the opinion of the court, Justices Ruth Ginsburg and Sonia Sotomayor took it a step further, saying that even a warrantless breath test is a violation of the Fourth Amendment.

“Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver’s alcohol level, the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case,” Sotomayor wrote.

Upholding warrantless blood draws from an unconscious citizen has the potential to set a dangerous precedent. It grants police the power to violate the personal boundaries of citizens on the grounds that police think a crime might have been committed.

That certainly does not sound like assumption of innocence until proof of guilt.

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We have firm ideas about personal boundaries and autonomy when it comes to interactions between two ordinary citizens, so it seems like an abuse of power to allow police to overstep those personal boundaries. Police are not above the law, and they certainly cannot be above societal expectations of respect for privacy and individuals’ personal liberty.

All this isn’t to say that current laws are too harsh on drunk drivers. In fact, Wisconsin remains the only state in the nation to not criminalize first-time DUIs — rather than treated as felonies, Wisconsin essentially treats such a first-time offense like a speeding ticket.

But, citizens have a certain right to give or revoke consent about what is done to their own bodies, without fear of criminal prosecution for executing that right. Police and lawmakers should not have the right to violate this consent, especially because allowing such a violation would set a dangerous precedent going forward. Upholding the implied consent statute in this case has the potential to open the door to allowing police to misuse their power in other, even more dangerous ways.

As Sotomayor explained, obtaining a warrant is really not so difficult that it should justify such a violation of one’s privacy. The Fourth Amendment exists for a reason, and we can’t allow law enforcement to dance around the constitution by creating exception after exception to make their lives easier.

Cait Gibbons ([email protected]) is a junior studying math and Chinese.

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