Motion to Suppress Blood Test (Equal Protection Challenge to Implied Consent)

STATE OF WISCONSIN CIRCUIT COURT _____ COUNTY

STATE OF ____,

Plaintiff,

vs. Case Nos. ___________

MR CLIENT,

Defendant.

MOTION TO SUPPRESS BLOOD TEST:

Due Process Violation

TO: NAME PROSECUTOR

Now comes the defendant, MR CLIENT, appearing specially by his attorney, _________ pursuant to Wis. Stat. §971.31(5), respectfully moves this Court for the entry of an Order suppressing as evidence in the trial of this action all direct and derivative evidence of the unlawful blood draw in this case, performed on (DATE) at the behest of (name officer) (“the LEO”), ________ County Sheriff’s Department, upon the following grounds:

1. No person shall be deprived of “life, liberty, or property without due process of law.” U.S. Const. amend. XIV, §1; see also Wis. Con. art. I, §§1, 8. The Due Process Clause protects fundamental rights from wrongful, arbitrary governmental action. State v. Luedtke, 2014 WI App 79, ¶ 16, 355 Wis. 2d 436, 851 N.W.2d 837.

2. Both the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin constitution protect persons against unreasonable searches and seizures. State v. Arias, 2008 WI 84, ¶ 13, 311 Wis. 2d 358, 752 N.W.2d 748 (“Article I, Section 11 is the state analogue to the Fourth Amendment and protects persons against unreasonable searches and seizures.”). That safeguard has been declared by the United States Supreme Court to be “‘as of the very essence of constitutional liberty’ the guaranty of which ‘is important and as imperative as are the guaranties of the other fundamental rights of the individual citizen.’” Ker v. State of California, 374 U.S. 23, 32 (1963) (emphasis added) (citations omitted).

3. Where legislation implicates a fundamental right, this Court must subject the text of the law to strict scrutiny analysis. Foucha v. Louisiana, 504 U.S. 71, 115 (1992). Wisconsin’s Implied Consent Law needs to pass strict scrutiny because it implicates the Fourth Amendment. State v. Blackman, 2017 WI 77, ¶ 53, 377 Wis. 2d 339, 898 N.W.2d 774. (“Blood draws are searches under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.”). As emphasized by the United States Supreme Court in Missouri v. McNeely, “[s]uch an invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” 569 U.S. 141, 148 (2013).

4. This due process analysis in no way concerns the question of whether criminal or civil penalties are ultimately at stake. Rather, the issues are whether the request for a warrantless blood test implicated a fundamental right, and, if so, whether Wisconsin’s Implied Consent Law is narrowly tailored to serve a compelling governmental purpose.

5. Wisconsin’s Implied...