Sunday, December 1, 2013

Wisconsin's Out For Blood

In October 2012 Victoria Milewski was pulled over for speeding by the Greenwood police. Once she was pulled over, the officer smelled marijuana coming from her car but she claimed that someone else had smoked marijuana in her car earlier. She even presented him with a small container of marijuana from under her front seat that she said also belonged to the person who smoked in her car. Ultimately the officer did not believe her story and arrested Milewski for operating while impaired. He then asked her to submit to a blood test under the state’s implied consent law, which claims that any person arrested for a DUI must submit to a blood, breath, or urine test in Wisconsin. The law states that if the officer has probable clause to believe that the driver was under the influence, he or she must consent to taking one or more of these chemical tests. Milewski declined a blood test claiming that as a Christian Scientist, allowing a needle to enter her body was against her religion. She asked to take a urine test instead, which the officers declined because the Greenwood police policy only allowed breath and blood tests for intoxication. In the end, two officers held her shoulders down while a phlebotomist drew her blood.


When the case was reviewed, the Assistant District Attorney dropped the misdemeanor THC possession charges against her and she pleaded no contest to a noncriminal traffic offense (operating with a restricted controlled substance). The Clark County Circuit Judge also revoked her driver’s license for six months. During the case’s review, Milewki’s attorney argued that her objection to the blood draw was based on her constitutionally protected religious beliefs. Additionally, her refusal seemed reasonable because she was willing to submit to a urine test instead of the blood draw. The Assistant District Attorney shot down this argument first by claiming that the attorney did not notify the state attorney general about the constitutional challenge to the implied consent law (protocol set forth by a state statute), so the Counsell could not consider this argument. The District IV Court also agreed that the Counsell could not rule on her constitutional rights because it hadn’t been addressed in the Wisconsin courts. Additionally in the majority opinion, the Judge wrote that the police officer was not required to comply with Milewski’s request to have a urine test instead. Apparently the type of test used is completely up to the officer making the arrest.

So ultimately, the case was only reviewed by the District IV Court of Appeals, where it was ruled that the arguments presented by Milewski were “misframed and underdeveloped,” especially because she did not choose to further argue the constitutionality issue. The state appeals court in Wisconsin refused to view the case at all on November 27th because of the aforementioned issues. In the end, Milewski was forced to have her blood drawn against her will and had her license revoked for sixth months for minor offense.

In reviewing her case, it is clear that there are some discrepancies in how Wisconsin legislative and law enforcement officials interpret the implied consent law. Sometimes there is a discrepancy between how a law is supposed to work in theory and how it is actually practiced, as we have seen in multiple cases throughout this semester. But even more important than the flaws of this particular statute is that the state forced this woman to do something that she believed was against her religion and prevented her from freely exercising her religious rights. There have been many Supreme Court cases in the past that have granted religious exceptions to people who sincerely believed that participating in a particular act would violate their religious beliefs. For example, in West Virginia State Board of Education v. Barnette (1943), the Gobitis decision was finally overturned and students in public schools were no longer required to salute the flag and say the Pledge of Allegiance in school if those actions conflicted with their religious beliefs.

So why wasn’t Victoria Milewski granted an exemption? The Court stands by their ruling that the issue of constitutionality in her particular case was not brought to the state attorney general in the correct timely matter. But should this be enough to let the Greenwood police department forcibly extract a blood sample from a woman who was simply trying to maintain her First Amendment rights to freely practice her religion? Especially considering that the woman was willing to participate in another type of test (the urine sample instead), was there really no possible way she could be accommodated and the police could’ve still carried out their job?

I think Milewski’s First Amendment rights to freely exercise her religion were explicitly violated in this case. The implied consent law of Wisconsin clearly states three different tests to determine intoxication levels and even though Milewski did not want to give a blood sample, she was very willing to give another type of sample. I feel like this situation could have been handled better in that the police officers could have given her more options and been slightly more accommodating. The only reason for her refusal to cooperate was because she felt that her rights to practice her religion freely were being violated in that moment, but shouldn’t that be enough?

What do you think? Were Milewski’s First Amendment rights violated or did the police do the right thing in getting the information they needed to keep the roads and their county safe from drivers under the influence?

3 comments:

Kaela Diomede said...

I do think that forcibly holding this woman down and extracting blood is definitely a violation of her Free Exercise. I think this sounds like torturous behavior, especially when she was just attempting to protect the fact that she is a Christian Scientist. I feel that because she was trying to comply in other ways, alternative testing could have been arranged. Marijuana stays in the system for an elongated period of time so a urine sample would have still proven whether or not there was marijuana in her system. I not only think that this was a violation of her Free Exercise, but I feel that this was cruel and unreasonable, and potentially physically harmful.

Maddie C. said...

I agree with Sayeh that Victoria Milewski's right to free exercise was violated. I think the police officers were very rash in their decision to get a blood sample from her to determine whether she was under the influence. She should have been allowed an accommodation based on her religious beliefs to be able to refuse the blood sample and allow the police officers to test for the drug in another way, as there are other plausible ways of testing for it and she was willing to comply to those ways. She was forced to act against her own religious beliefs, so I think it was unconstitutional for these police officers to do that.

Gabby D. said...

I agree with Sayeh and the other commenters. This woman's first amendment rights were explicitly violated when she offered a religious excuse, and a possible accommodation, and the police officers (state representatives) ignored her free exercise rights. The police coerced this woman to explicitly go against her religious rights, without any sort of trail or help from outside sources. This seems extremely cruel and there certainly could have been a better way of going about it since Ms. Milewski even offered another viable option of testing.