Issues
Does the Fourth Amendment require law enforcement to obtain a warrant before drawing blood from an unconscious motorist when, under state law, intoxicated motorists have given their implied consent for blood draws?
This case asks the Supreme Court to determine whether the Fourth Amendment permits police to draw blood from unconscious drivers under a theory of implied consent in lieu of a warrant. Gerard Mitchell, a driver from whom police drew blood while he was unconscious, contends that the Fourth Amendment’s consent exception should not apply because a blood draw is a serious intrusion that calls for a warrant. Wisconsin argues that it has a great interest in addressing intoxicated driving, and it fairly uses an implied-consent statute that allows it to draw blood from unconscious drivers. Mitchell suggests that permitting these warrantless blood draws may seriously threaten privacy rights and open the door to additional forms of warrantless intrusions. Wisconsin warns of the dangers posed by impeding police efforts to remove intoxicated drivers from the road.
Questions as Framed for the Court by the Parties
In a state with an implied-consent statute for intoxicated motorists, is a warrantless blood draw of an unconscious driver for whom police have probable cause of operating under the influence an unlawful search under the Fourth Amendment?
Facts
In 2013, the City of Sheboygan Police Department received a report that a neighbor saw Gerald Mitchell, who appeared intoxicated, drive away in a van. The police officers responding to the report found Mitchell walking near a beach. Mitchell was wet, shirtless, covered in sand, unbalanced, and had slurred speech. Officer Alex Jaeger approached Mitchell, who admitted that he had been drinking before driving. Mitchell told Jaeger he had parked his car “because he felt he was too drunk to drive” and had continued to drink at the beach. Jaeger decided it might not be safe to administer standard field sobriety tests, so he instead gave Mitchell a preliminary breath test. The test revealed that Mitchell had a blood alcohol concentration (BAC) of 0.24. Jaeger then arrested him for operating a vehicle while intoxicated and transported him to the police station. At the police station, Mitchell became increasingly lethargic, and Jaeger realized that an evidentiary breath test was not possible because of Mitchell’s deteriorating condition. Jaeger then transported Mitchell to the hospital for a blood draw. During the drive, Mitchell appeared unconscious and could not be woken up. At the hospital, Jaeger read Mitchell a standard form explaining that Mitchell could withdraw his consent to a blood draw. Because he was so incapacitated, however, Mitchell could not respond. Jaeger then directed the hospital staff to draw Mitchell’s blood, which revealed Mitchell’s BAC to be 0.222.
The State of Wisconsin accordingly charged Mitchell for driving with a prohibited alcohol concentration and for operating a motor vehicle while intoxicated. Prior to his trial, Mitchell moved to suppress the results from this blood test, alleging a violation of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Wisconsin maintained that Mitchell, by driving on Wisconsin highways, actually consented to the blood draw, pursuant to Wisconsin’s implied-consent law. Additionally, Wisconsin argued that Mitchell must be presumed not to have withdrawn his consent for the blood draw because he was unconscious. The Wisconsin state circuit court agreed with the State of Wisconsin and denied Mitchell’s motion to suppress, concluding that the blood draw was lawful because of Wisconsin’s implied consent law and because Jaeger had probable cause to believe Mitchell was driving while intoxicated. Mitchell appealed his conviction, arguing that the warrantless blood draw violated his Fourth Amendment right to be free from “unreasonable searches and seizures.”
The Wisconsin Supreme Court held that, by driving on Wisconsin’s roads, Mitchell implicitly consented to having his blood drawn. Additionally, the Wisconsin Supreme Court noted that, although someone can ordinarily withdraw this kind of consent, the intent to withdraw consent must be unequivocal; even though Mitchell was unconscious, he still had to unequivocally withdraw his consent, which he did not do. Thus, the Wisconsin Supreme Court concluded that Mitchell, by drinking enough to strongly suggest his intoxication and by driving on Wisconsin’s roads, voluntarily consented to having his blood drawn for testing. Therefore, the court affirmed Mitchell’s convictions.
Mitchell petitioned for a writ of certiorari, which the United States Supreme Court granted in January 2019.
Analysis
ESTABLISHING CONSENT UNDER THE FOURTH AMENDMENT
According to Mitchell, he did not consent to the blood draw so that, according to the Fourth Amendment, law enforcement could not proceed without a warrant. Mitchell asserts that consent must be given “freely and voluntarily” and may be withdrawn at any time. Therefore, Mitchell continues, an implied-consent statute like Wisconsin’s—which allows law enforcement to presume that motorists agree to the blood draw unless they say otherwise—is insufficient to find true consent. Mitchell notes that an unconscious individual cannot voluntarily decide anything, so he or she cannot consent to anything under the Fourth Amendment. Accordingly, Mitchell explains, Wisconsin cannot invoke its implied-consent statute to justify drawing Mitchell’s blood while he was unconscious, and law enforcement must seek actual and voluntary consent before proceeding to a blood test. Here, Mitchell contends that he did not agree to the blood draw before he lost consciousness. Moreover, at the time of the blood draw, Mitchell says he was unconscious and unable to consent at that point either. Mitchell further asserts that Wisconsin law cannot presume that he had consented to the blood draw simply because he was driving in the state. Indeed, the Court never created an exception to the warrant requirement based on the state-granted privilege of driving, Mitchell notes. Finally, according to Mitchell, the decision not to withdraw consent is just as important and must be just as free as the decision to consent. Thus, Mitchell explains, Wisconsin cannot presume that an unconscious person does not withdraw a previously given consent; such presumption is unconstitutional under the Fourth Amendment because it denies unconscious individuals the opportunity to refuse the blood draw.
Wisconsin responds that implied-consent statutes are constitutional under the Fourth Amendment and remain constitutional when applied to unconscious drivers. Citing Missouri v. McNeely, Wisconsin argues that the Court already upheld the constitutionality of implied-consent laws for blood tests. According to Wisconsin, implied-consent statutes enable states to presume that individuals consented to searches when they engage in a certain type of activities. Furthermore, Wisconsin contends that its implied-consent statute is constitutional because, complying with Birchfield v. North Dakota requirements, it does not impose criminal penalties for refusing to submit to the blood test. Wisconsin further argues that implied-consent statutes are still constitutional for blood draws from unconscious drivers. According to Wisconsin, Mitchell consented to the blood draw because consent may be inferred from the circumstances: driving within Wisconsin, in light of the implied-consent statute, is enough to establish consent. Moreover, Wisconsin reasons that the Fourth Amendment does not require consent to be intelligent or informed, and it may be given in advance. Thus, Wisconsin claims drawing blood from an unconscious driver falls under the consent exception to the Fourth Amendment warrant requirement. Indeed, Wisconsin maintains, by the time a driver falls unconscious, he or she already consented to the search. Additionally, Wisconsin asserts that there is no rule under which drivers (whether conscious or not) would have the right to an opportunity to withdraw their consent to a blood test. Indeed, once consent has been given, law enforcement does not need to make sure that the individual does not wish to withdraw consent, Wisconsin notes. Finally, Wisconsin posits that the scope of the implied-consent statute is reasonable because it presumes consent based on the (conscious or unconscious) driver’s decision to drive, and that this presumption is fair as there is a direct causal link between the states of heavy intoxication and of unconsciousness.
APPLYING THE TOTALITY OF THE CIRCUMSTANCES AND CLOSELY-REGULATED INDUSTRY EXCEPTIONS TO THE WARRANT REQUIREMENT
According to Mitchell, law enforcement should look at the totality of the circumstances to determine whether the Fourth Amendment requires a warrant. Under this test, Mitchell notes, the Court looks at the totality of the circumstances to balance the intrusion into an individual’s privacy and the state interests at stake. Mitchell explains that the Court held in Birchfield that breath tests met the “totality of the circumstances” test because the bodily intrusion is minimal, and the breath test is administrated for reasonable state interests. However, according to Mitchell, a blood draw is a much more serious intrusion into an individual’s body so that law enforcement needs a warrant to proceed. Thus, Mitchell reasons that under the totality of the circumstances, Wisconsin cannot draw blood from an unconscious motorist based on the motorist’s decision to drive. Indeed, Mitchell asserts, Wisconsin cannot determine that a motorist consented to have his or her blood drawn because the motorist decided to drive in the state. Thus, Wisconsin must get a warrant before drawing the blood of an unconscious motorist suspected of drunk driving, Mitchell maintains. Finally, the Court’s exception to the warrant requirement for closely-regulated industries is irrelevant here, Mitchell argues, because driving is available to the public at large, and thus cannot count as a heavily regulated industry.
In response, Wisconsin contends that Mitchell’s warrantless blood draw was constitutional because it was reasonable to further the state’s interests in combatting impaired driving and maintaining safe roads. According to Wisconsin, the state may condition the privilege of driving on complying with a warrantless search if that search is reasonable based on the invasion of privacy and the state interests at stake. The invasion of privacy is more likely to be reasonable in highly regulated industries, such as the liquor industry, Wisconsin explains. Moreover, Wisconsin continues that, considering that driving is a dangerous activity, impaired driving is likely heavily regulated. Accordingly, states have a strong interest in getting a blood sample from drivers who may be impaired while driving, Wisconsin posits, especially to determine the driver’s intoxication level. On the other side of the balancing test, Wisconsin argues that getting a blood sample from an unconscious person is minimally intrusive. Finally, according to Wisconsin, drawing the blood of an unconscious driver is reasonable under the Fourth Amendment as a search incident to arrest. Furthermore, Mitchell here was unconscious so that a breath test was not possible, Wisconsin contends. Therefore, Wisconsin concludes that looking at all the circumstances, drawing Mitchell blood’s while he was unconscious was reasonable under the Fourth Amendment.
Discussion
PROTECTING INTOXICATED DRIVERS’ PRIVACY RIGHTS VERSUS PROTECTING OTHER DRIVERS’ SAFETY
The DUI Defense Lawyers Association (“DLA”), writing in support of Mitchell, acknowledges that intoxicated driving is a serious problem, but maintains that this is no excuse not to respect the Fourth Amendment’s privacy implications. The American Civil Liberties Union and the ACLU of Wisconsin (“ACLU”), also writing in support of Mitchell, note that blood draws reveal much more about people than simply their BACs; blood tests can expose highly intimate medical details, such as sexually transmitted diseases or other conditions. Like the DLA, the ACLU recognizes Wisconsin’s interest in protecting other drivers on its roads but asserts that Wisconsin may not violate the Fourth Amendment just because it has a compelling interest in driver safety. The ACLU explains that, although Wisconsin has a similar interest in combatting texting-while-driving, warrantless searches into drivers’ cellphones would certainly be forbidden; by analogy, the ACLU argues, warrantless blood draws should also be forbidden. Finally, the ACLU posits that Wisconsin can obtain enough evidence beyond the blood draw to successfully prosecute intoxicated drivers and impose necessary safety measures, and Wisconsin can therefore satisfy its safety interest without violating drivers’ privacy rights.
The National Conference of State Legislatures et al. (“Conference”), writing in support of Wisconsin, on the other hand, expresses more concern for protecting drivers on the road. Mothers Against Drunk Driving (“MADD”), also writing in support of Wisconsin, maintain that drug-impaired driving is a growing problem and that the number of drivers killed in car accidents who tested positive for drugs is dramatically on the rise; consequently, MADD argues, drug-impaired driving is joining drunk driving as a major epidemic in Wisconsin. MADD argues that, to deter this epidemic of drunk or drugged driving, states must be able to effectively enforce their impaired driving laws, partly by restricting impaired drivers’ driving privileges in the future. To remove these impaired drivers and make roads safer for others, the Conference contends, officers need to know a person’s level of intoxication. MADD highlights that knowing a person’s level of intoxication is required for prosecuting them and for determining what level of disciplinary measures are appropriate. MADD notes that this response is crucial because the potential damage an impaired or even unconscious driver can cause to themselves and to others is severe, so reprimanding them appropriately is necessary to deter these potential harms in the future.
IMPORTANCE AND PRACTICALITY OF OBTAINING A WARRANT
The DLA contends that blood draws are deeply intrusive because they require piercing the skin—something that breath tests and other searches do not do. Consequently, the DLA argues, such an invasive procedure should be administered only with a warrant. The DLA emphasizes the fact that technological advances now allow police to quickly get search warrants electronically, so officers have little excuse to conduct blood draws without first obtaining a warrant. In support of Mitchell, the DKT Liberty Project et al. (“DKT”) warns that permitting police to conduct these warrantless blood tests based on a theory of implied consent may lead to other serious intrusions, such as implying consent to warrantless searches of homes whose owners accepted government mortgage assistance or other financial benefits. The DKT acknowledges that there may be special circumstances where there is not enough time to obtain a warrant, but nevertheless argues that those circumstances do not justify categorically permitting warrantless blood draws.
MADD counters that unconscious drivers are presumed to consent to a blood draw only in narrow circumstances; therefore, MADD argues, there is very little intrusion, if any, when the presumption applies and police conduct a blood draw. For this reason, the blood draw is not so intrusive so as to require a warrant.The State of Colorado and other states (“States”), writing in support of Wisconsin, contend that medical personnel are almost certain to draw blood in their assistance of a person found unconscious on a public road anyway; thus, allowing police to do so as well is not intrusive at all. Similarly, MADD suggests that unconscious people usually need immediate medical attention, so delaying a blood draw by seeking a warrant could interfere with attending to those needs. Furthermore, the States highlight the fact that an unconscious person cannot feel the blood draw, so offense from the blood draw is not so great so as to require a warrant. The League of Wisconsin Municipalities et al. (“League), also writing in support of Wisconsin, dismisses the practicality of obtaining a warrant before a blood draw, noting that most blood draws of unconscious drivers occur late at night and often on weekends when few judges are available.
Written by
Edited by
Acknowledgments
Additional Resources
- D. Alicia Hickok et al., Mitchell v. Wisconsin, Cato Institute (Mar. 4, 2019).
- Lisa Soronen, Supreme Court Agrees to Decide Drunken Driving Case, NSCL (Jan. 25, 2019).
- Cait Gibbons, Implied Consent Laws Set Dangerous Precedent for Abuse of Power, Badger Herald (Jan. 29, 2019).