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Can a Blood Sample Be Taken From Me When I’m Incapacitated?

Person in hospital bed

When getting pulled over, law enforcement may ask if you’re under the influence of drugs or alcohol. While every driver has the right to respond to this question, some drivers may be incapacitated for various reasons and unable to answer this specific question.

Previously, Wisconsin law enforcement officers were able to take blood samples without consent from an incapacitated person. This is because the law presumed that those who were incapacitated automatically gave consent to have blood samples taken for drugs and alcohol in their system. However, a recent Wisconsin Supreme Court ruling stated that if someone is incapacitated, they cannot consent to give a blood sample.

The ruling stems from a 2014 car crash near Madison where a woman driver was killed at the scene. Officers took blood samples from the surviving driver and did not execute a warrant for her blood sample. That surviving driver could not consent to have her blood drawn at the hospital because she was unconscious. The officer told a nurse to take the blood sample because the officer felt a warrant wasn’t needed.

The local circuit court ruled that the blood draw test result was not allowed to be submitted to the court, and the case was dismissed. A state appeals court said that while the officer acted in good faith, he committed an unconstitutional act; however, the blood tests should have been allowed in a trial. Shortly after the state Supreme Court was given the case, where they ruled that the officer meant well but upheld an unconstitutional law.

This ruling is important because it gives drivers protection of their Fourth Amendment rights. In the Fourth Amendment, it states that a person is protected from unconstitutional search and seizure.

Contact Our Milwaukee Drunk Driving Attorney Today

If you’ve been involved in a drunk driving accident, or feel your rights were violated while being arrested for drunk driving, contact the team at The Law Offices of Jason D. Baltz right away. Our attorneys know the law and will fight for your case. Don’t hesitate and reach out today for a free consultation — (414) 375-0797.