By: Attorney Marcus J. Berghahn

Phone: (608) 257-0945


Attorney Marcus Berghahn was interviewed on Wisconsin Public Radio’s Central Waters program about the Wisconsin Supreme Court’s decision.  Listen to the discussion here:

On July 3, 2018, the Wisconsin Supreme Court held in State v. Mitchell, 2018 WI 84, that police  could take blood from an unconscious driver.  The Court determined that Mitchell’s right against unreasonable searches and seizures was not violated because Wisconsin’s Implied Consent law did not require police to obtain voluntary consent from the driver when that was not possible.  Mitchell argued that he was not afford the opportunity to withdraw consent to the police’s taking of his blood.

After Mitchell came into contact with police, he passed out from having consumed too much alcohol.  Mitchell was taken to a hospital to have his blood drawn (as evidence of Operating While Intoxicated).  At the hospital, he “appeared to be completely incapacitated, [and] would not wake up to any type of stimulation.”  The Wisconsin Supreme Court commented that “through this conduct, he forfeited all opportunity to withdraw the consent to search that he had given [by being a licensed driver].”

The take-away from this case is the importance of understanding Wisconsin’s Implied Consent law.  The essence of the law, as stated by the Wisconsin Supreme Court, is that anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood or urine” to determine the presence of drugs or alcohol.  “Consent is complete at the moment the driver begins to operate a vehicle upon Wisconsin roadways if the driver evidences probable cause to believe that he or she is operating a vehicle while intoxicated,” Chief Justice Roggensack wrote.  The Court also noted that it is “constitutionally permissible to impose civil penalties as a consequence for refusing to submit to a blood draw” and there is no constitutional right to refuse one.

If you have been arrested for an offense related to operating a motor vehicle while impaired or with a prohibited alcohol concentration contact the attorneys at Hurley Burish, S.C.