By Lisa Soronen
Most, if not all, states have adopted “implied consent” laws where drivers may be tested if police have probable cause to suspect they have been driving while intoxicated.
Drivers may withdraw consent and refuse to take a test, subject to penalties. In Birchfield v. North Dakota (2016) the Supreme Court held that, generally, police must obtain a warrant to require a blood test (versus a breath test) where officers have probable cause.
But what if a driver is unconscious and unable to withdraw consent to a blood test (and unable to take a breath test)?
Wisconsin and 28 other states allow warrantless blood draws of unconscious drivers where police have probable cause to suspect drunkenenen driving.
The question the Supreme Court will decide in Mitchell v. Wisconsin is whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
A preliminary breath test, not sufficient evidence for trial, indicated Gerald Mitchell had a blood alcohol level of .24. A police officer took Mitchell to the police station for an evidentiary breath test but Mitchell had passed out. When his blood was drawn at the hospital Mitchell was still passed out. Mitchell argues the warrantless blood draw violated his Fourth Amendment right to be free from “unreasonable searches and seizures.”
A majority of the Wisconsin Supreme Court held that the blood draw in this case didn’t violate the Fourth Amendment. Three judges relied on a Wisconsin statute that presumes an unconscious person who police have probable cause to believe is intoxicated hasn’t withdrawn consent.
Two concurring judges concluded the blood draw in this case was constitutional because it was reasonable: “[Mitchell] had been arrested for OWI, evidence of the offense was continually dissipating, there was no telling how long he would be unconscious, his privacy interest in the evidence of intoxication within his body had been eviscerated by the arrest, and no less intrusive means were available to obtain the evanescent evidence.”
But these judges objected to the notion a state statute could render the blood draw in this case constitutional because “the state can[not] waive the people’s constitutional protection against the state.”
The dissenting judges would have required a warrant in this case. They were even more skeptical of the legislature’s ability to presume an unconscious person may consent to a blood draw: “A blood draw is plainly a ‘search’ for Fourth Amendment purposes. Accordingly, one has a constitutional right, not merely a statutory right, to refuse such a search absent a warrant or an applicable exception. Under the lead opinion's analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand.”
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor on judicial issues to the NCSL Blog.