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Jeffrey W. Jensen is a criminal defense lawyer in Milwaukee, Wisconsin. He is also a criminal appeals lawyer in Wisconsin.
Today on The Jensen Defense
"Get a warrant!"
United States Supreme Court holds that police may not conduct a warrantless blood draw, even under the Implied Consent law
Recently, in Birchfield v. North Dakata, the United States Supreme Court held that police officers may not conduct a warrantless blood draw on a person, even pursuant to ab Implied Consent Law. Birchfield may have far-reaching consequences in how Wisconsin prosecutes operating under the influence of drugs or alcohol.
An "Implied Consent Law" provides that when a person obtains the privilege a driver's license, he or she impliedly impliedly consents to a test of his or her blood, breath, or urine upon being arrested for operating under the influence of drugs or alcohol. Wisconsin's Implied Consent Law provides for an additional revocation of the person's operating privileges if the person refuses. Some states' Implied Consent Laws provide for criminal penalties (jail) upon an illegal refusal.
Under Birchfield, the Implied Consent Law will no longer permit an officer to demand a warrantless blood draw when a person is under arrest for operating under the influence. Rather, the officer must obtain a warrant. Significantly, though, the Supreme Court held in Birchfield that a warrant is not required to demand a breath test pursuant to an Implied Consent Law.
So what are the practical consequences of Birchfield.
Firstly, Wisconsin will have to redraft the Informing the Accused Form that is read to persons who are under arrest for operating under the influence of drugs or alcohol. Currently, the form-- which the law requires the officer to read to the person prior to demanding a test-- informs the subject that he or she impliedly consents to a test of his or her blood, breath, or urine for the presence of alcohol or drugs. Presumably, the form will have to be redrafted so that the person is properly informed that he or she has not "impliedly" consented to a blood draw, and that if the officer wants to draw blood, he will have to get a warrant.
Secondly, although every county has a "duty judge", whose obligation it is to consider warrant requests during non-business hours, it is relatively rare for there to be a warrant request in the middle of the night. Now, though, if drivers are informed that they need not submit to a blood test without a warrant, the number of night-time warrant requests in a busy metropolitan area such as Milwaukee will increase substantially. Consequently, officers are likely to demand breath tests under circumstances where, in the past, they would have routinely demanded a blood test (e.g. an arrest for a second or subsequent offense). However, breath tests cannot detect the presence of controlled substances. Thus, whenever an officer suspects that the subject was operating under the influence of a controlled substance, the officer will need to obtain a warrant for a blood draw. This will undoubtedly increase, to some extent, the number of overnight warrant requests. Counties will have to adapt, probably by designating more than one duty judge.
Finally, expect the legislature to increase the penalty for refusing a test under the Implied Consent Law. As mentioned, in Wisconsin the current penalty for refusing is an additional revocation of one's driver's license. Many states, though, provide criminal penalties for a refusal (that is, jail is a potential penalty). When persons are under arrest for a second or subsequent offense, and they are informed that they need not submit to a blood test without a warrant, there is a strong incentive to refuse the breath test. There may be a chance that a judge is not available to issue a warrant for a blood draw (which is considered to be more accurate than a breath test). Consequently, expect the legislature to act quickly to increase the penalty in Wisconsin for refusing a breath test under the Implied Consent Law.
The Supreme Court's decision in Birchfield is the correct one. There is something viscerally abhorrent about the government sticking a needle into a person's arm and removing blood. Certainly, the Fourth Amendment applies to such a situation; and one ought not forfeit the protections of the Fourth Amendment merely by obtaining a driver's license. Although the courts have described a driver's license as a "privilege"; in reality, it is for many people an absolute necessity.
Here's How . . . To Pass the Field Sobriety Tests: Nothing is more frightening than seeing the red and blue lights in your rear-view mirror. This article shows you how give your best performance on the field sobriety tests. ________________________________
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Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 735 W. Wisconsin Avenue, Twelfth Floor, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.224.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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