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Craig Mastantuono Feb. 29, 2016

The Wisconsin Supreme Court held this week that the body’s metabolization of heroin provides exigent circumstances to support a blood draw without a warrant. In State v. Parisi, 2016 WI 10, friends found Parisi unconscious and they called 911, where police and paramedics saw the following: Parisi was unconscious in vomit, possibly not breathing, there was heroin nearby his body, and he was revived after being injected with Narcan, a heroin overdose antidote. Officers drew blood 2.5 hours later without a warrant, and charged him with possession of a narcotic (heroin) as a second or subsequent offense.

The majority based its decision on the limited information available about Parisi's situation and the current science behind heroin dissipation:

Any number of factual variations might change the result in a future case: police might initially have more facts at their disposal, such as the type and amount of an ingested drug, as well as the time it was ingested; other jurisdictions might allow for more rapid acquisition of search warrants; scientific evidence on heroin dissipation may become clearer in the future; and so on.

Parisi, ¶ 42. The dissent argues that the Court has created a per se heroin rule by finding exigency based on the speed at which heroin dissipates in the body, or is metabolized. It points out that the science behind heroin's metabolization is the same for everyone, even when the science behind the process changes.

And therein lies the rub. The US Supreme Court recently held in Missouri v. McNeely that there can be no per se rule creating exigency where a person in metabolizing alcohol to permit a blood draw without a warrant. The Court specifically stated that there is no plausible justification for an exigency exception to the warrant requirement where there is an officer to accompany the individual to the hospital, and another to obtain a warrant:

Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.

McNeely, 133 S. Ct. 1552, 1561 (2013). This passage may foreshadow a petition by Parisi to the US Supreme Court given that there were at least five officers on scene in his case. In addition, an officer testified that it takes two hours to obtain a warrant in that jurisdiction in his experience, which is less than than the 2.5 hours that passed before the blood draw.

As an aside, Justice Rebecca Bradley participated in the 5-2 majority, although she was not appointed to the Court by Gov. Walker until after oral arguments had been heard in this case.

M&C Law will keep track of this issue as it develops.