Today the Supreme Court of the United States issued a plurality opinion on a Wisconsin case dealing with impaired/unconscious drivers and implied consent. In an interesting holding, the decision states that an unconscious driver is almost always an exigent circumstance, and an officer may do a warrantless blood draw under that exception. Here is a quick rundown of the case:
Mitchell was seen getting into his van and driving off after an onlooker observed he seemed "very drunk." Officer found Mitchell down near the lake, stumbling around and intoxicated. After determining that SFSTs would be futile and likely dangerous due to the level of intoxication, Officer had Mitchell blow into a PBT. The PBT result was .24. Officer arrested Mitchell and was taking him to the station for an evidentiary breath test. On the way Mitchell was loosing consciousness and by the time they got there, he was totally passed out drunk. Officer transported Mitchell to the hospital where he ordered a warrantless blood draw based upon the state's implied consent laws that state an unconscious person has not withdrawn their consent for a chemical test after driving.
Mitchell's motion to suppress was denied and he was convicted of Wisconsin's version of DUI. As the case came to the SCOTUS, Wisconsin did not advance any argument based upon exigency. The state actually conceded that it was not an exigency, and only advanced the argument that under implied consent, Mitchell had consented to the blood draw and was therefore not a violation of the Fourth Amendment. Neither party argued exigency, and the Court seemed to sua sponte advance the exigency argument it settled with the holding.
One thing the Court makes clear, however, is that BAC tests are searches. This follows the reasoning in prior cases, including the prior Birchfield case where breath tests were upheld without a warrant as searches incident to arrest.
Here are some important statements from the Court:
"Today, we consider what police officers may do in a narrow but important category of cases: this in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant."
Later:
"Thus, when a driver is unconscious, the general rule is that a warrant is not needed."
And in its concluding remarks:
"When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer and standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment."
Justice Thomas' concurrence, which put the plurality over the top, would have us overturn McNeely where the Court previously stated that the natural dissipation of alcohol in the body over time alone is not an exigency without other factors in play. Justice Thomas dissented to that notion then, and reaffirmed his dissent to that principle in his concurrence with the result. He would have all DUI cases be able to have a warrantless blood draw under the exigency doctrine due to the natural dissipation of alcohol in the body.
Two dissents were written in the case. One by Justice Sotomayor, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch also wrote a dissenting opinion.
The short version of this holding is that the Court ignored the implied consent argument, and held that the warrantless blood test of an unconscious person where an officer has probable cause that the person was DUI is almost always permissible under the Fourth Amendment. This is the general rule. The Court left open a small possibility that a driver in individual cases could show exigency did not apply, and that is why the case was remanded back to Wisconsin state courts to go through those proceedings.
Here is a link to the opinion: Mitchell v. Wisconsin
As always, please let me know if you have questions or concerns.
Tyson
