SCOTUS: Warrantless Blood Draw Permitted on an Unconscious DUI Suspect

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Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019)

An officer responded to a report that an intoxicated Gerald Mitchell had gotten into a vehicle and driven away. The officer found Mitchell wandering on the beach of a lake, hardly able to stand on his own. A portable breath test showed a result of 0.24, three times the legal limit. The officer arrested Mitchell and drove him to the police station for a formal breath test.

By the time the officer arrived at the station, Mitchell was too lethargic to complete a breath test. The officer drove Mitchell to a hospital for a blood test. When they arrived at the hospital, Mitchell was completely unconscious. The officer read the standard DUI admonition to the unconscious Mitchell—including the section about the right to withdraw consent—and a technician drew blood after the unconscious Mitchell did not withdraw consent (kind of hard to do when passed out drunk).

Mitchell was convicted of drunk driving. Wisconsin’s law stated an unconscious person is presumed to not have withdrawn consent for a chemical test. Mitchell sought review of the admission of the blood alcohol evidence, claiming he did not consent to the blood draw and the officer did not obtain a search warrant. The case reached the Supreme Court, which ruled against Mitchell in a split of opinions.

Justice Alito wrote a plurality opinion (joined by Chief Justice Roberts and Justices Breyer and Kavanaugh) resting on the exigent circumstances’ exception to the Fourth Amendment. Justice Alito wrote, “evidence is literally disappearing by the minute” and police may “almost always” take a blood test without a warrant from an unconscious drunk driving suspect. Justice Thomas wrote a concurring opinion, also citing the exigent circumstances exception and the dissipation of alcohol in the bloodstream. Justice Sotomayor penned a dissent, joined by Justices Bader Ginsburg and Kagan, stating “the answer is clear: If there is time, get a warrant.” Justice Gorsuch dissented in a separate opinion, arguing the Mitchell case was not the appropriate case to decide whether the exigent circumstances exception should apply.

The takeaway rule guiding officers is that no warrant is required to take a blood sample from an unconscious driver who is taken to a medical facility before an officer has the chance to administer a standard evidentiary breath test—well, as Justice Alito wrote, “almost always.”

The takeaway rule guiding officers is that no warrant is required to take a blood sample from an unconscious driver who is taken to a medical facility before an officer has the chance to administer a standard evidentiary breath test—well, as Justice Alito wrote, “almost always.” Justice Alito left the door open just a crack for an unconscious driver to contest the warrantless blood draw in the narrow circumstance where the blood is drawn only for evidentiary purposes (not for medical assessment and treatment purposes) and the officer has no reason to believe seeking a warrant would interfere with the investigation.

Justice Thomas explained he would have adopted a more straightforward rule to guide officers. He wrote that the plurality opinion meant “exigent circumstances are generally present when police encounter a person suspected of drunk driving—except when they aren’t.”

The Court’s first significant decision concerning warrantless blood draws was Schmerber v. California, decided over 50 years ago. The Court held the exigent circumstances exception applied to allow a warrantless blood draw by a doctor treating Schmerber after he crashed his car into a tree. Six years ago, the Court decided Missouri v. McNeely and held the simple fact of a DUI arrest did not equate to exigent circumstances for a warrantless, nonconsensual blood draw. The Court held the exigency must be assessed on an individual case basis. Three years later, in Birchfield v. North Dakota, the Court held a drunk driving arrest justified a breath test under the search-incident-to-arrest exception but not a blood test. The Court also held the implied consent law cannot apply if refusal to submit to a test carried its own criminal sanction (but civil sanctions, such as license revocation, can apply to a refusal).

The most constrictive view of the plurality opinion in the Mitchell case is that the unconsciousness of a suspected drunk driver now becomes a significant factor in determining whether there are exigent circumstances justifying a warrantless blood draw. Officers may, of course, still choose to obtain a search warrant.

Over half the states have implied consent laws generally similar to the Wisconsin statute. The respective state courts will take Fourth Amendment instruction from Mitchell v. Wisconsin but remain free to interpret the application of their individual state statutes under the Court’s decision. State courts may also apply their own state constitutional provisions to expand individual protections against nonconsensual, warrantless blood draws from unconscious drunk drivers.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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