The Drunk Driving Blood Test: What Happens if I Withdraw My Consent for Testing?

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For years, the law of the land held that if you get pulled over for drunk driving in Wisconsin, law enforcement officers were permitted to take a sample of your blood for testing purposes with or without your consent. That rule changed in 2013, and now the police must either obtain your consent or a warrant to obtain a blood sample. Recent developments in Wisconsin have shed light on some of the challenges that this new rule poses for law enforcement.

In Missouri v. McNeely, the United States Supreme Court held that 4th Amendment protections against warrantless searches and seizures applied to the taking and testing of a person’s blood for alcohol levels. Since that 2013 decision, when investigating someone for suspicion of drunk driving, Wisconsin law enforcement officers must ask a person for consent to take and test blood. Absent consent, a warrant must be sought from a judge.

This legal change was put to the test on October 29, 2016, when Jessica Randall was arrested in Dane County on suspicion of drunk driving. When asked by police if she would agree to have her blood tested for alcohol, Ms. Randall said yes. Ms. Randall’s blood was taken and sent to the Wisconsin State Laboratory of Hygiene for testing. Two days later, Ms. Randall’s attorney sent a letter to the Laboratory, revoking her consent to any testing of her blood. Despite acknowledging receipt of the letter, the Laboratory tested Ms. Randall’s blood anyway.

On November 17, 2016, a criminal case, alleging 3rd offense drunk driving and third offense operation of a car with a prohibited blood alcohol level, was filed in Dane County. Ms. Randall filed a motion to suppress the results of her blood test. The Dane County Circuit Court granted the motion and the District Attorney’s Office appealed.

In State v. Randall, the Wisconsin Court of Appeals upheld the decision of the Circuit Court.  Relying on State v. VanLaarhoven, the Court of Appeals held that the taking and testing of a person’s blood constitutes one continuous search. Therefore, although the search begins with the drawing of a person’s blood, the search does not end until the Laboratory has tested that blood for alcohol.

Turning next to the issue of whether Ms. Randall could withdraw her consent to the testing of her blood after originally giving that consent, the Court of Appeals, relying on State v. Wantland, held that a person who consents to a search has the right to withdraw that consent any time before the search is completed. Therefore, Ms. Randall had the right to withdraw her consent to the testing of her blood up until the point that the Laboratory completed the testing. Because the Laboratory received the letter from Ms. Randall’s attorney, withdrawing consent, prior to testing her blood, the Court of Appeals held that the testing of Ms. Randall’s blood constituted a warrantless search in violation of her 4th Amendment Rights and affirmed the Circuit Court’s granting of Ms. Randall’s suppression motion.

An appeal of the appellate court’s decision is currently pending before the Wisconsin Supreme Court.

This article is authored through the collaborative efforts of Eric R. Pangburn and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting veterans of the United States Military.

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