Supreme Court to Consider Whether Police Can Order Blood Draws from Unconscious Drivers

Warrantless "implied consent" laws are under review over Fourth Amendment concerns.


Blood draw
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The Supreme Court will consider whether the government can draw blood from unconscious motorists to check for alcohol or drugs without their consent or a warrant.

The justices have previously weighed in on attempts to force people to submit to warrantless blood draws. In 2016 the Supreme Court ruled unconstitutional a North Dakota law that threatened drivers with criminal penalties for refusing to let the authorities draw their blood without a warrant.

But the Wisconsin law at the heart of Mitchell v. Wisconsin is different. Wisconsin has an "implied consent" law that authorizes police to order blood draws for drivers who are unconscious and therefore unable to consent. The cops just have to suspect that the driver is drunk; no warrant or permission is required. Many states have similar laws.

That's what happened to Gerald Mitchell in 2013 after he was arrested for suspicion of driving while intoxicated. He moved to suppress the test results because he did not consent and police did not seek a warrant. Wisconsin's top court ruled 5–2 against Mitchell, determining that this implied consent statute does not violate the Fourth Amendment's protections against warrantless searches.

The more you try to explain "implied consent," the more absurd it sounds. One of the dissenting judges in Wisconsin observed that the "implied consent" doesn't actually come from Mitchell but from the state's legislature, through the magic of "deeming" something: "One only 'deems' when the thing deemed did not really happen, but you intend to act as though it did. So it makes no sense to ask if the driver freely and voluntarily gave something he manifestly did not give in the first place."

You may recall a viral story from 2017 of an Utah nurse who was arrested for refusing to draw blood from a patient in a coma unless he got a warrant. There was a side debate about Utah's implied consent law there, but even under the statute the detective was in the wrong. Just like in Wisconsin, Utah's implied consent law requires police to have probable cause that the driver was under the influence. But the driver in that Utah case had been struck head-on by a car fleeing the police. The authorities had no reason to suspect he had been driving under the influence in the first place.

Versions of these implied consent statutes exist in 29 states. Seven state courts have ruled that these warrantless blood draws are unconstitutional, while six states (besides Wisconsin) have determined that they're fine. So the time seems right for the Supreme Court to take the case. And on Friday it agreed to do just that, announcing that it would hear the case to consider "Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement."

Read more about Mitchell v. Wisconsin here.