State v. Donnie Gene Richards, 2017AP43, 4/16/20, District 4 (recommended for publication); case activity (including briefs)

Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.

This case is the first published Wisconsin interpretation of SCOTUS’s decision in Mitchell v. Wisconsin. It divines from the plurality in that case that there are four issues on which the state must carry an evidentiary burden in unconscious-driver cases:

(1) law enforcement has probable cause to believe that the driver has committed a “drunk-driving offense”; (2) the driver is, at pertinent times, unconscious or in a stupor; (3) the driver’s unconscious state or stupor requires that he or she be taken to a hospital or similar facility; and (4) the driver is taken to the hospital or similar facility before law enforcement has a “reasonable opportunity” to administer a standard evidentiary breath test.

(¶29). But, the court says, if the state meets these burdens, it’s on the defendant to prove that

(1) his or her blood “would not have been drawn if police had not been seeking BAC information” about the driver’s blood alcohol content; and (2) law enforcement could not have reasonably judged that a warrant application

(¶30). This is a departure from the usual rule that the burden to show exigency is on the state but, the court says, the language of Mitchell compels it. (Though the South Carolina supreme court has recently declined to accept this burden allocation.)

From here, it’s a factbound discussion. Suffice to say that the court of appeals has no problem concluding that, under Mitchell, there was exigency here.

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