For years, Wisconsin was one of only a handful of states to grant police such blanket authority. But last year, the U.S. Supreme Court ruled in a Missouri case that police don't always have the power to draw blood without a warrant or consent. In the wake of the high court decision, Wisconsin police have shied away from taking blood tests for alcohol content without consent or a warrant.
The Wisconsin high court announced Tuesday it will consider three drunken driving cases, two of which involved a homicide. The rulings are expected to clarify how law enforcement in the state can gather evidence in some drunken driving cases.
"One thing I can guarantee is the Wisconsin Supreme Court is going to indicate that the... (old) rule of law is no longer valid," said Tim Kiefer, a Madison defense attorney.
Kiefer said any decision by the Wisconsin high court is unlikely to apply retroactively to blood tests taken without consent in cases dating back years ago. More likely a ruling would apply to only those cases already before the Wisconsin courts, he said.
One case the state high court will consider involves Alvernest Kennedy, a Milwaukee man whose blood-alcohol content was allegedly three times above the legal limit to drive in August 2006, when his Chevy Impala struck and killed a woman.
Another case involves Michael Tullberg, who allegedly flipped his truck in Shawano County in 2009, killing a passenger and injuring two others.
The third case involves Cassius Foster, who was charged with drunken driving after breath and blood tests in 2009 showed he was over the legal limit to drive.
Blood was drawn from all three men without police obtaining a warrant.
"Police are in a tough decision point because if they wait to get a warrant, it's unlikely that by the time they get that warrant that the blood-alcohol (content) is going to be anywhere close to the level it was at the time the driver was driving," Kiefer said.
Department of Transportation data show nearly 5,000 people refused to comply with blood-alcohol tests in both 2011 and 2012.
The U.S. Supreme Court decision in April 2013 on a Missouri case concluded that the need to draw blood without a warrant should be made on a case-by-case basis. The court said that police in states such as Iowa and Utah seek blood testing on a case-by-case basis. Minnesota, Idaho and Wisconsin were cited as having blanket laws in place that could lead to unconstitutional gathering of evidence.
Many Wisconsin counties have since put in place new rules for police to follow with suspected drunken drivers. Some have adjusted the schedules of judges so they are readily available for warrants around the clock to approve warrants. Marathon County Sheriff Scott Parks, for example, said on-duty judges were given electronic devices that they use to issue warrants without requiring an officer to obtain one in person.
Tullberg's attorney, Tracey Wood, said the court will rule whether police acted in good faith when they collected the evidence under the law of the state at the time.
Arguments from the defense attorneys are due Monday. It's unclear whether the state Supreme Court will hold oral arguments and when it will issue its rulings.