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
Susanne Neal / Dreamstime.com

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.

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  1. “Wisconsin has an “implied consent” law that authorizes police to order blood draws for drivers who are unconscious and therefore unable to consent.”

    And that’s how they planted OJ’s blood at Nicole’s house.

    This is creepy

    1. Are you sure he didn’t nick himself somehow while he was trying to cut her head off?

      1. Now that doesn’t sound plausible

        1. But is it credible?

          1. OJ is completely innocent. We all know he was framed by those evil LA police who’d been laying a trap for him for years and years …. because OJ was so unpopular. Right? LOL

            1. If it had happened in Columbus, Ohio, perhaps.

              Buckeye fans never did like OJ.

              Could have been worse, he could have played for the team up north, but USC is bad enough.

  2. You have the right to remain silent… I mean, you are unconscious. You have the right to an attorney, but since you’re unconscious, I’m just going to assume that you waive that right.

    Just lay there if you understand these rights as I have read them to you. Good… book’em Dan-o.

    1. Nicely explained, with humor, Leo.

    2. +1 to Leo.

  3. The more you try to explain “implied consent,” the more absurd it sounds.

    Dennis Reynolds further explains the implication.

    1. That’s an awesome reference!

      1. It’s an okay reference.

    2. That’s an awesome reference!

    3. It IS the “implication”…

    4. You should hear what Diane Reynolds has to say.

    5. No one’s in danger!

  4. This is assault. Put the perp in a bed and a needle of penetration is rape. The cops are committing rape.

    1. Hmm. That’s a novel way to define rape.

      1. What do they call it if penetrated with a beer bottle?

        Penetration, however slight …..

        1. +1 Pueblo

      2. Just depends on where you put the needle.

    2. Most of us are probably against this type of police tactics but its not rape.

      1. But when the victim wakes up, and feels like it was rape, it is rape then? Or maybe 15 years later?

    3. Technically, it would no longer be ‘virgin skin’ because it would have been penetrated.

  5. Fucking awesome if they finally get rid of unconstitutional implied consent laws.

    The state needs a warrant based upon probable cause every time they want something from you.

    The states always hated that DUIs pretty much require you telling on yourself via blood, breath, or urine and they needed a warrant to get those.

    1. If I’m correct, in many states, refusing a breathalyzer is automatic grounds for losing your license for a period of time, even though the results are known to be inaccurate.

      1. They’re going to suspend your license anyway.

        Never “refuse” to give a sample. Just dont give consent.

        You should never be speaking to the police anyway.

        This way your attorney can argue that you never speak to police because of your 5th Amendment rights to remain silent and you did. About everything.

        Some jails require you to give them basic identifying info to get a bail amount, so speak to them not the arresting officers.

  6. Police shouldn’t be able to order blood draws on anyone who doesn’t consent. I also find it completely insane that a simple warrant is enough to compel someone to have blood taken. There should be a much higher threshold to violate someone’s body like that.

    1. The warrant threshold can be high enough if judges actually held cops to the probable cause standard.

      Non-drunk people can smell like alcohol (diabetes and spilled alcohol) and drive badly, so why would that by itself be probable cause?

      M.A.D.D. made all this happen.

      Women made the Prohibition happen.


      1. Sure. It would also work if the cops wouldn’t seek warrants without good probably cause. But I don’t trust Judges any more than cops. And for a warrant, all the judge has to go on is what the cop says. I think there should be some kind of adversarial hearing before there can be any legal order to put anything into or take anything out of someone’s body. Ever if warrants were only issued under the exactly proper circumstances, I don’t think the standard of evidence is sufficient to violate a person’s bodily integrity.

        1. While I appreciate the sentiment, an adversarial hearing would take too much time. The alcohol would likely be fully metabolized before the unconscious person even woke up to choose a lawyer, much less before said lawyer had a chance to show up and argue the case.

          Even in a less-time-sensitive situation, allowing an adversarial proceeding before you can get the warrant would tip off all the true criminals and give them too much opportunity to destroy the evidence. The warrant process exists so that the police can find and preserve evidence before the adversarial process begins. In the warrant process, it is the judge’s job to protect the rights of the (still presumed innocent) target. The fact that some judges abrogate their responsibility is not a sufficient reason to destroy the entire system.

          Now, if you wanted to say that we need greater consequences for bad judges who uncritically approve questionable warrants such as firing, jail time or, dare I say it, wood chippers, you might find less disagreement.

          1. some judges… where is the threshold? All judges? 80%? It really doesn’t seem like a system that’s working (for the accused; the cops & judges seem to be doing fine), which seems to suggest that it should indeed be thrown out.

            You’re never going to hear about rejected warrants, but man, you really never hear about rejected warrants…

      2. Women as a group are shitty voters. Ann Coulter pointed out that they have always voted for the Moore leftist comadidate in every presidential election as a group.

        End women’s sufferage, and with that, end men’s suffering.

        1. On a side note, the last Ike Turner discusses issues like these in his thought provoking book ‘Woman’s be Thinkin’ too Much’.

        2. You hate women? What a surprise.

          Ann Coulter pointed out

          That she’s totally not a woman.

        3. They don’t put you at the kiddie table at Thanksgiving, they put you in a whole other room, don’t they?

          1. Tony, it’s not thanksgiving without a drunken relative spouting off about the wisdom of Ann Coulter.

      3. “Probable cause” doesn’t mean there is no possible other explanation. Nobody is sure exactly what it does mean, but if you take all the drivers who have been stopped and smell of liquor, what percentage are actually intoxicated? 90%? 95%? Enough, anyway, for any sensible definition of “probable cause”.

      4. disregard females, pursue currency

  7. Scott: “statuts”

    1. I was about to post something about that, too, but it looks like they fixed it. In the grocery store article, it was spelled “statues”.

  8. implied consent is neither.

    1. So are you telling me that if a chick passes out at a party wearing a skirt with no underwear and her legs are kind of spread, that that is NOT implied consent?

  9. The authorities had no reason to suspect he had been driving under the influence in the first place.

    They hoped that he had so that he and not the police initiating the ultimately fatal chase could be blamed for it. That has to count for something.

    1. Correct, there was a cause, although not probable.

  10. This is essential taking implied consent from a medical milieu (you’re unconscious and bleeding profusely. Would you like medical staff attempt to save your life?) and contorting it to a criminal milieu (can the police offer a sharp knock to the head in cases of incongruity?). Never mind there is probably a rash of HIPPA regulations to sort through before even turning over evidence to law enforcement if you are following the letter of the law.

    I imagine the state will argue on taking the sample and seeking a warrant later, but depending on the reading, this could have ramifications for emergency care, and that’s just evil.

  11. I’m surprised the “nurse getting arrested for refusing to take blood” story got swept under the rug so quickly.

    1. Sadly a lot of us were not surprised at all

  12. Implied consent?

    Bill Cosby wishes he thought of that.

  13. Surely you do not mean to imply the convenience of the officers is of less importance than some old piece of paper written by a bunch of old white guys?

  14. Draw and preserve the sample, so that evidence is not lost while the subject’s metabolism consumes the potential evidence.
    Then once the subject is awake, a warrant may be sought, its appropriateness challenged, and then, and only then, is the lab run and the result reported. Otherwise the sample is destroyed.

    1. Better yet, just wait and then charge them with destruction of evidence! Metabolizing all that sweet sweet evidence. The devious bastards.

    2. It sucks for police but the 4th Amendment protects The right of the people to be secure in their persons….
      until a warrant is issues based upon probable cause.

      There is nothing in the Constitution about police having an over-riding exception to maintain evidence. Nothing.

  15. If the court rules against implied consent for blood draws it seems like the same should apply to breath tests. If they can’t take my blood why should they be able to take my breath?

    1. If you’re unconscious, they physically can’t. Breathalyzers require the subject to blow.

      But you are referring to a different kind of “implied consent” – the claim that you don’t have a _right_ to drive on the public roads, and by doing so you may be deemed to have given consent to BAC testing, by either breathalyzer or blood draw. You can still refuse to blow, but your drivers license will be suspended. (What happens with an unlicensed driver?) And if they have probable cause to suspect drunk driving, they can get a warrant and a forced blood draw. It is also possible, although rare these days, to prosecute for drunk driving using a video of the roadside sobriety test, and the testimony of officers and others. If you looked drunk at the time of the accident, a bar employee remembers serving you several drinks, and an employee of another bar also remembers serving you, the jury might conclude that you were drunk.

      1. There was a recent case in Grand Rapids, Michigan. An assistant DA drove the wrong way on a one-way street at about 2 am, struck a parked car, and injured someone. The video of the roadside sobriety test is inconclusive in my very much not-expert opinion, partly because he avoided doing several steps while talking continually and quite glibly. He refused to take a breathalyzer. And, although the initial opinion of the first cop on the scene was that the ADA was “hammered”, under the inadvertently recorded guidance of the shift commander the cops finally took him home without getting any BAC measurement at all. The shift commander was fired, the other cops suspended for a few weeks, and the ADA was fired – but convicted only of reckless driving, without the additional penalties for drunk driving and causing an injury.

  16. I know some drunken frat bros who are very interested in this “implied consent” concept.

    1. I would even tell your Lefty ass never speak to police.

      If they ask you to search you vehicle, say NO and nothing else. Dont try and talk your way out of a ticket if they are trying to find some dirt on you. You’re getting a ticket.

      If police stop you for DUI, dont say anything. Dont say where you were coming from or where you are going. Dont say whether you have been drinking.

      Never agree to a blood, breath, or urine sample. Just say nothing so you are not “refusing” implied consent laws.

  17. Implied consent is a medical doctrine. In an emergent situation if the patient is unconscious or otherwise unable to give consent you can do whatever is necessary to preserve life.

    That could include a blood tox screen if indicated. You need to know what is “on board”.

    I do not know how the police can claim the same thing.

    1. Driving is a privilege, not a right. Getting a drivers license is to give consent to DUI searches. I suppose as long as there’s a shitty-ass bus somewhere in town that could conceivably get you to your job or the grocery store, they’re technically right.

      1. Having a drivers license is not probable cause.

        1. +100

      2. So the government is in the business of handing out privileges? I thought the purpose of government was to protect my liberty. I have a right to freedom of movement and if I choose to do so in a motor vehicle I don’t need the permission of the state. My rights can be curtailed if it can be proven that my driving a vehicle creates a bona fide threat to the liberty of others. But that doesn’t make it a privilege. Fuck off slaver.

        1. +100

      3. Tony would have said that riding a horse is a privilege not a right too.

        Driving is a right. Just like riding a horse is a right.

        Some rights not protected specifically by the Constitution can be subject to limitation. Driving could be one of those rights slightly limited.

        Not limited to circumvent the 4th Amendment though.

      4. Tony, What does driving have to do with it?

        Implied consent in medicine is based on the idea of preservation of life in extreme circumstances when there is no other choice. It is limited.

        Police can collect evidence at a crime scene. A good y4 medical resident with will and a 19g needle can get anywhere in your body.

        Keep them apart.

        1. Don’t mistake me—I think implied consent is a constitutional abomination.

          1. Gotcha

          2. Said that wrong. I understand

  18. Left or right supreme court i won’t hold my breath hoping they will rule against implied consent.

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  21. Does this mean that police can beat someone unconscious to get their implied consent?

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