State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.

Hammersley argues that under Birchfield, “proceedings based upon the refusal to submit to a warrantless blood draw are unconstitutional” and that Birchfield‘s holding is a substantive rule that must be applied retroactively to his case. (¶10). Not so. Birchfield may only be applied to convictions not yet final at the time it was decided, and Hammersley’s revocation was final about two decades before Birchfield was decided. (¶12). In any event, Hammersley misreads the decision:

¶13     Birchfield … did not cast a blanket prohibition on warrantless blood draws. The Court made clear that while police officers could not draw a driver’s blood incident to his or her arrest without a warrant, they could still either seek a warrant when there is sufficient time to do so or rely upon the exigent circumstances exception to the warrant requirement when there is not. Birchfield, 136 S. Ct. at 2184-85. Finally, Birchfield also did not conclude [sic] as per se unconstitutional a state’s implied consent statute. See id. at 2185 (“Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply … and nothing we say here should be read to cast doubt on them.”).

Hammersley’s cause isn’t helped by the fact that it’s unclear whether blood was even drawn after his refusal. And if blood was drawn, it doesn’t help that Hammersley never litigated the legality of the draw because he didn’t make a timely request for a refusal hearing. (¶¶2-3, 14-15). The lack of a timely request resulted in a default revocation, which Hammersley unsuccessfully challenged in a previous appeal (2013AP1263), and his attempts to relitigate the issues from that appeal are rejected for all the obvious reasons. (¶¶4-5, 16-19).

Hammersley’s cause isn’t even helped by the state’s decision not to file a brief. (¶10 n.2).