Judging Traffic (January 2019):

Judging Traffic Header

IN THIS ISSUE:

National: U.S. Supreme Court Agrees to Take Wisconsin Case On Blood Draws Of Unconscious Drivers

Kentucky: Enhanced Penalties for Refusing to Submit to Blood Test Permitted Under Birchfield

Distracted Driving Laws and Fatalities

Editor: Bill Raftery

National: U.S. Supreme Court Agrees to Take Wisconsin Case On Blood Draws Of Unconscious Drivers

Earlier this month the U.S. Supreme Court agreed to take Mitchell v. Wisconsin, a case stemming from the high court's 2016 decision in Birchfield v. North Dakota that held the Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk driving and that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. Before the court in 2019 will be the question of whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. The Wisconsin Supreme Court held in July 2018 (914 N.W.2d 151) that a statute (Wis.  Stat.  §343.305(3)(b)) authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.  The Wisconsin Supreme Court held that consent to such a blood draw is granted by the driver's exercise of the privilege of driving on Wisconsin highways. The court further held the fact that Mitchell was incapacitated at the point when the blood draw took place did not mean his consent was not "freely and voluntarily" given and that the state need not demonstrate that consent was given "knowingly and intelligently."

The date for oral argument before the U.S. Supreme Court has not yet been set.

Kentucky: Enhanced Penalties for Refusing to Submit to Blood Test Permitted Under Birchfield

The Kentucky Court of Appeals in a series of cases has upheld as constitutional the use of sentencing enhancements for refusal to take a blood test under Birchfield.

The Court of Appeals in Commonwealth v. Brown, ––– S.W.3d ––––, 2016-CA-001641-MR, 2018 WL 2271149, 560 S.W.3d 873 (Ky. App. May 18, 2018) and in LaRue v. Commonwealth, 2019 WL 103959 (Ky. App. Jan. 4, 2019) read Birchfield as being against the use of a new criminal charge for failure to agree to a blood draw. Brown and LaRue were not being prosecuted for a new criminal charge, however, but instead were subject to a doubling of their minimum jail sentence under the state's DUI laws where the person has already been convicted of a second or more DUI offenses in the last 10 years. In Brown, a panel of the court held that the doubling-for-refusal provision "lacks the coercive force of mandating the accused undergo an intrusive test or else accrue an additional criminal charge." Brown was handed down in May after the briefs in LaRue had been filed.

Distracted Driving Laws and Fatalities

With the adoption of new laws against distracted driving in Texas (2017) and Georgia (July 2018), those states have seen a decline in the number of fatalities on their roads. Texas saw a 4% drop (3720 down to 3567) while Georgia in 2018 saw about 90 fewer highway traffic fatalities vs. 2017. The declines are consistent with research published in 2014 that indicated about a 3% reduction in traffic fatalities in states where laws banning texting while driving were primarily enforced.

Upcoming Events


Want more from NCSC? Subscribe to our other e-newsletters here.

Send us information and content!

We greatly appreciate notice of new or upcoming articles, projects, symposia, and other traffic-related events! Sending us content helps improve the newsletter for everyone. One note: when alerting us to articles published elsewhere on the Web, please include the URL, as we cannot reprint full-text articles from other sources without permission.

Disclaimer: Opinions contained herein, as well as material appearing on external sites to which this publication provides links, do not necessarily reflect those of the National Center for State Courts or the National Highway Traffic Safety Administration. The presence of any such material should not be construed as support by the National Center for State Courts or any of its associations, affiliates, or employees.

NCSC maintains exclusive use of its subscriber lists. Information contained therein will only be used by NCSC and is never distributed to other organizations. All communications from NCSC contain an opt-out provision for your convenience.

Some online research provided by Westlaw.   Westlaw Logo

Forward our newsletter to your colleagues, friends, neighbors, etc. Subscribe to this and other NCSC e-newsletters at www.ncsc.org/newsletters.