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Wisconsin Court Rules DUI Suspect Cannot Withdraw Consent to Chemical Testing After Blood is Drawn

Following the Birchfield ruling, if a person is arrested for suspicion of DUI the arresting officer can only conduct a warrantless blood test on the person if he or she consents to the test, otherwise it constitutes an unreasonable search and seizure in violation of the 4thAmendment of the United States Constitution. The Birchfield ruling has caused a ripple effect throughout the country, as courts continue to analyze how it impacts issues of consent in DUI cases. For example, the Wisconsin Supreme Court recently addressed the issue of whether chemical testing that is conducted after the defendant’s consent is withdrawn constitutes an unreasonable search. If you live in Illinois and are facing DUI charges following a warrantless blood test it is crucial to retain a seasoned Illinois DUI attorney to help you formulate a defense.

Underlying Facts and Ruling

Reportedly, the defendant was arrested for operating her vehicle while under the influence of alcohol. She consented to submit to a blood test but withdrew her consent after the blood was drawn before any chemical testing was performed and demanded that the destruction of her sample. The blood was tested regardless, however. Prior to trial, the defendant filed a motion to suppress the results of her drug test, arguing that the test was an unreasonable search and seizure in violation of her constitutional rights, due to the fact the testing was conducted after she withdrew her consent. The trial court granted the defendant’s motion. The State appealed the trial court’s ruling and on appeal, the appellate court affirmed the trial court’s decision. The State then appealed to the Wisconsin Supreme Court, who reversed the trial court decision.

In issuing its decision, the Wisconsin Supreme Court stated that there was only one search conducted, which was the blood draw to which the defendant consented. The court held that the search ended when the blood draw was completed, and the subsequent testing of the blood did not constitute a second search. Further, the court stated a defendant arrested for driving while intoxicated has no privacy interest in the amount of alcohol in a blood sample. Therefore, the court held that the defendant’s right to be free from unreasonable search and seizure were not violated by the testing of her blood and reversed the trial court ruling.

Illinois DUI Laws Regarding Consent to Blood Tests

Illinois has not addressed the issue of whether the results of a DUI defendant’s blood test are admissible if the defendant revokes his or her consent after the blood is drawn but before the blood is tested. Under Illinois’ law, however, drivers are deemed to consent to chemical testing if they are stopped for suspicion of DUI. Drivers can withdraw the implied consent prior to testing but may face civil penalties for refusing to submit to chemical testing.

Meet with a Skilled Illinois DUI Attorney Regarding Your Charges

As the laws regarding consent to a blood draw in DUI cases continue to evolve, so do DUI defendant’s rights and potential defenses. If you are charged with a DUI following a warrantless blood test you should meet with a skilled Illinois DUI attorney to discuss your case and whether you may be able to preclude the State from admitting certain evidence. Attorney Theodore J. Harvatin, of the Harvatin Law Offices, PC is a trusted Illinois DUI attorney who will work diligently to develop compelling arguments on your behalf, to help you protect your rights. You can contact Mr. Harvatin at 217.525.0520 or through the online form to set up a confidential and free meeting to discuss your case.


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