Argument preview: Justices to weigh constitutionality of state law allowing blood test of unconscious drivers without a warrant

In 2013, police officers found Gerald Mitchell wet, shirtless and covered in sand on a beach in Sheboygan, Wisconsin. Mitchell was slurring his words, and he told police that he had parked his car nearby “because he felt he was too drunk to drive.” After a preliminary breath test – the results of which are not admissible in court – revealed that Mitchell’s blood-alcohol level was three times the legal limit, police arrested Mitchell, first taking him to the police station. But he was so drunk that police realized that a second breath test wouldn’t be an option and decided to take him to the hospital for a blood test instead. By the time they arrived at the hospital, Mitchell had passed out. The hospital staff still took a blood sample, which registered a blood-alcohol level of 0.222. When Mitchell was charged with driving while intoxicated, he argued that the results of the blood test could not be used in court, because the Fourth Amendment required the police to get a warrant. Wisconsin countered that the blood draw was constitutional, under a state law that assumes consent to a blood test for anyone who drives on the state’s roads; the law also assumes that an unconscious driver has not withdrawn his consent. Next week the Supreme Court will weigh in.

The Supreme Court generally requires a warrant for searches to look for evidence of a crime, unless one of a few narrow exceptions applies. In his brief on the merits, Mitchell stresses that in recent years the Supreme Court has twice rejected states’ efforts to rely on exceptions to the warrant requirement to draw blood from suspected drunk drivers without a warrant. He explains that a state can generally draw blood from someone only if it gets a warrant; the state can’t do an end run around the warrant requirement by passing a law that assumes consent in every case. Otherwise, Mitchell contends, the state could argue that people consent to a search whenever they do something as ordinary as using a cellphone or walking down the street.

Even if Mitchell agreed to the blood test when he drove in Wisconsin, Mitchell continues, courts would still need to look at whether he voluntarily agreed to the blood draw at the scene. The Supreme Court has made clear that the state must show that his consent was voluntary “in light of all the surrounding circumstances” – but Wisconsin has not done so. And it can’t do so, Mitchell adds, because Mitchell was unconscious and couldn’t have consented.

The state also cannot link blood draws without a warrant to driving privileges, Mitchell asserts, because the intrusion on the body and on privacy from a blood draw is so substantial, particularly when someone is unconscious. By comparison, the law-enforcement interests advanced by drawing blood without a warrant are much less significant, he contends, because – as the Supreme Court has observed – alcohol in blood dissipates in a “gradual and relatively predictable manner.” As a result, because of advances in technology that allow police to apply for warrants remotely, police can normally get a warrant before blood-alcohol evidence is jeopardized, “often in 15 minutes or less.” If there are emergency circumstances in which it isn’t possible for police to get a warrant, Mitchell concedes, the state can go ahead and draw the blood sample without violating the Fourth Amendment.

Finally, Mitchell argues that the Supreme Court has already rejected the state’s argument that it doesn’t need a warrant to draw blood as part of a valid arrest. Three years ago, Mitchell reminds the justices, in a case called Birchfield v. North Dakota, the Supreme Court upheld the constitutionality of a breath test without a warrant as part of an arrest of a suspected drunk driver. But it ruled that an implied-consent law that imposed criminal penalties for suspected drunk drivers who refuse to take a blood test violates the Constitution. Paraphrasing the Supreme Court’s decision in Riley v. California, in which the court ruled that police will generally need a warrant before they can search the cellphone of someone who has been arrested, Mitchell concludes that “the proper procedure for obtaining a blood draw is ‘simple—get a warrant.’”

Defending the state courts’ decisions, Wisconsin begins by recounting the “enormous public safety problem” of drunk driving and drugged driving, which it describes as “pernicious” in Wisconsin. In both scenarios, the state observes, drivers often “lose consciousness.” Implied-consent laws are an important way to fight this problem, the state contends, by allowing police to test drivers whom they suspect are impaired even if the drivers are unconscious at the time.

The Supreme Court, the state emphasizes, “has long recognized the validity of implied consent laws under the Fourth Amendment.” A suspected drunk driver is presumed to have consented to a blood test whenever he drives on Wisconsin roads; if he withdraws his consent, the state can take away his driving privileges, but it cannot impose criminal penalties.

What Mitchell’s case really boils down to, the state observes, is a challenge to the law’s presumption that an unconscious driver has not withdrawn his consent to the blood test. But that presumption, the state stresses, “targets the most alarming and dangerous subset of all”: drivers who have had so much to drink that they have passed out and cannot be tested any other way. The driver’s consent does not always need to be explicit, but can instead be inferred from context – and everyone is assumed to know the law.

A ruling for Mitchell, the state cautions, would create the perverse result of giving unconscious drivers more rights than conscious ones, even though the unconscious drivers are responsible for their intoxicated condition. And the state downplays Mitchell’s concern that, if the implied-consent law is upheld, the state will be able to easily bypass the warrant requirement in other, ordinary scenarios. It stresses that the law is narrow: “It presumes that an unconscious person has not withdrawn his implied consent if—and only if—police have probable cause to believe that he has operated while intoxicated and he has rendered himself unconscious without first withdrawing consent.”

The state argues in the alternative that drawing blood from unconscious person suspected of drunk driving without a warrant also does not violate the Fourth Amendment because it is reasonable. Wisconsin, the state says, has a “weighty” interest in fighting driving while impaired, while on the other hand an unconscious driver whose blood is drawn by medical professionals probably won’t even feel it. And the state cites “real concerns” raised by requiring police to get a warrant before taking blood sample from an unconscious person. “Delay means evidence is disappearing,” the state warns. The state concludes that “an impaired unconscious driver who requires aid from others is merely being asked to uphold his end of the bargain”: He gets emergency aid in return for society’s “modest demand to detect his level of intoxication.”

The state also urges the justices to reconsider language in Birchfield indicating that a suspected drunk driver who is unconscious could not have blood drawn as part of his arrest. The state emphasizes that Birchfield involved different facts from those in this case, and that the “key reasons that the Court gave for distinguishing a breath test from a blood test for the conscious driver would not apply here.”

The court’s decision is likely to have an impact well beyond Wisconsin: A “friend of the court” brief filed by Colorado and a group of 18 other states notes that 29 states have laws that authorize blood draws without a warrant from suspected drunk drivers who are unconscious. A ruling is expected by late June.

This post was first published at Howe on the Court.