Warrants

Supreme Court Allows Warrantless Blood Draws of Unconscious Drivers

SCOTUS says it is constitutional for police to draw blood from unconscious drunk driving suspects.

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The Supreme Court ruled today that exigent circumstances allow police to draw blood from an unconscious driver without his permission and without a warrant if the police suspect that the driver is under the influence of alcohol.

Today's decision in Mitchell v. Wisconsin comes just three years after the Court ruled that police generally do need to get a warrant to perform blood tests if a driver does not voluntarily consent. And the Court's judgment actually dodged the major question presented by the case: Whether a state can force a citizen to consent in advance to unwarranted blood tests as a condition of driving.

The ruling centered on a man named Gerald Mitchell, who was arrested on suspicion of drunken driving. Police brought him to a hospital for a blood test, but he was unconscious by the time they arrived and thus could not consent. Wisconsin has an "implied consent" law that authorizes police to draw blood from unconscious drivers if the officers have probable cause to suspect that those drivers are under the influence of drugs or alcohol. Drivers essentially have to consent to this search as a condition of driving legally in the state.

Mitchell challenged the constitutionality of this implied consent. The plurality decision, written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh, held that the blood draw is covered by the "exigent circumstances" exception to the Fourth Amendment that allows police to conduct warrantless searches in order to prevent the destruction of evidence. Specifically, the justices determined that the potential dissipation of evidence of alcohol in Mitchell's bloodstream, along with other public safety needs (such as getting Mitchell to the hospital), took precedence over a warrant application and thus justified the blood draw.

To reach this conclusion, Alito drew heavily from a previous Supreme Court precedent, Schmerber v. California (1966), which established that police could draw blood without a warrant if they would otherwise be forced to wait so long that the evidence might be destroyed by the body's metabolic processes.

Justice Clarence Thomas concurred in the judgement. He also wrote separately to say that he thought Alito's ruling set up overly complicated guidelines for what counts as an exigent circumstance. Thomas argued that police should be able to draw blood without warrants in drunken driving cases to preserve the evidence, period.

Writing in dissent, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, questioned whether the exigent circumstances described by the Court's judgment actually existed. Wisconsin, in fact, did not make any such argument while defending the blood draw and even conceded that the situation was not so pressing that its officers couldn't take the time to get a warrant. At the trial court stage, the state even admitted that this was not a case of exigent circumstances. Instead, the state leaned heavily on the "implied consent" demand under Wisconsin law. As Sotomayor pointed out, "Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here. In fact, in the state proceedings, Wisconsin 'conceded' that the exigency exception does not justify the warrantless blood draw in this case." She also noted that advances in technology and communications have made it relatively easy for judges to give warrants "within 5 to 15 minutes." She concluded:

Acting entirely on its own freewheeling instincts—with no briefing or decision below on the question—the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment. With respect, I dissent.

Justice Neil Gorsuch also dissented, writing briefly to say that he thought the case should have been dismissed as improvidently granted because the Court had declined to address the constitutionality of implied consent, which was the whole reason for taking the case up in the first place.

Read the Supreme Court's decision here. The Reason Foundation (the non-profit that publishes this site) submitted an amicus brief supporting Mitchell and asking the Supreme Court to rule that Wisconsin cannot force drivers to give up their constitutional rights in this manner. Read that brief here.

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  1. >>>questioned whether the exigent circumstances described by the Court’s judgment actually existed

    not if car is stopped and mr. sleepy in custody.

  2. “Justice Neil Gorsuch also dissented, writing briefly to say that he thought the case should have been dismissed as improvidently granted because the Court had declined to address the constitutionality of implied consent, which was the whole reason for taking the case up in the first place.”

    So Gorsuch is going to be the most libertarian judge in decades, no?

    1. He’s good but not perfect. I forget which, but he was in on a bad one this week.

      1. Only one in a week? That’s the best by a long shot. None of the other justices can even count to ten without skipping at least a couple numbers.

    2. It appears so, so far.

  3. Nurse: I can’t draw his blood. He’s saying he doesn’t consent. You have to get a warrant.

    Cop: [Cracks suspect skull with baton] Look, he’s unconscious. The Constitution says I can gather all the blood we need now.

    1. And, sadly, some people may think you’re making a joke.

      1. It does create that incentive. Cops essentially want people to be unconscious when they need their blood. That “ideal” part of me says this wouldn’t happen. But that “realist” part of me just cracked my “idealist” skull in and is starting the blood draw…

    2. Cop: [Cracks suspect skull with baton] Look, he’s unconscious. The Constitution says I can gather all the blood we need now arrests the nurse.

      FTFY

      1. That’s not even farfetched. Wisconsin law pretty much says a hospital employee must draw blood if an officer instructs them to.

  4. The ability to get warrants has been streamlined and expedited to such a degree that I find it pure laziness on the officers’ part to not just get the warrant.

    1. That fact also makes me think that it should take more than a warrant to remove a part of someone’s body by force. Something like a hearing where the person to be cut into gets to argue his side.
      It just seems utterly inappropriate that one’s bodily integrity can be violated like that based pretty much on one cop’s assertion that you are probably drunk.

      1. If they can force stuff into you then they shouldn’t have any problem taking stuff out of you.

      2. It is, essentially, rape followed by theft

      3. I have to disagree. A small sample of blood is infinitely replaceable. Calling it a “violation of bodily integrity” is just exaggerated sophistry.

        Then, a hearing would clearly take so long that there would be no chance of valid data.

        Don’t make it a false dichotomy, putting up an impossible requirement. You will lose

    2. Cops are fat and lazy.

  5. “Justice Neil Gorsuch also dissented, writing briefly to say that he thought the case should have been dismissed as improvidently granted because the Court had declined to address the constitutionality of implied consent, which was the whole reason for taking the case up in the first place.”

    I love that Gorsuch is just like “guys we should be staying our lane here. wtf?”

  6. Haven’t they already ruled that the Fifth has to be explicitly invoked for it to apply? This is just an extension of that, the cops don’t need a warrant unless you specifically insist that they do. All the power belongs to the government except for those few things the Constitution says they may not do. It’s swapping an opt-in provision for an opt-out provision. As long as you don’t tell the cop explicitly that you do not consent to being raped, it’s consensual sex as far as SCOTUS is concerned.

    1. and not-consenting is obstruction of justice

    2. The blood draw is a 4A search/seizure issue, not a 5A self incrimination issue.

      1. It can be both, as well as a 14th amendment incorporation issue

        1. warrants are irrelevant to 5A.

          That the blood draw was done without a warrant only matters for 4A

          1. I know that, legally, this is considered true. But I don’t understand how giving blood (if drunk) isn’t testifying against oneself.

          2. Yeah, but the fact that the man was not conscious made him incapable of invoking his right of refusal and/or refusing medical treatment.

      2. Many judges think the 5th Amendment covers not telling on yourself and the 4th Amendment covers protection of your stuff without a warrant.

        They took this concept to mean that blood can be drawn with a warrant because it’s your stuff.

        Police could never get the convictions they do for DUI without blood, breath, or urine so the court contort themselves to allow it. You have to tell on yourself via body specimens to be convicted of DUI in most cases.

  7. Warrent or not, the government has no right to stick needles in anyone’s arm without consent.

    1. I agree. It seems to me that there should be a firm line drawn when it comes to violating a person’s bodily integrity. It’s much more than a search. There should be much more process involved, in my opinion, if you are going to actually enter someone’s body by force. If I were in charge it would be something on the level of a full criminal trial.

    2. The law needs to be clarified that absent a blood draw, the breath test of 0.24 was sufficient to prove DUI.

      Make the blood draw an opportunity for the defendant rather than put the onus on the cops to stick him.

      But if you want the onus on the cops to prove the case beyond a breath test, then you are forcing this outcome.

  8. If the govt can make people give up their 4th Amendment privacy as a condition to travel on the roadways then what’s stopping them from requiring people to give up other constitutional protections as a condition to say owning a gun, collecting a tax refund, doing business, or anything really.

    1. No law is valid if it requires me, in any way, to waive any fundamentally protected right in order to exercise any other right or alleged privilege.

  9. Boy, signing up Bert sure was worth the effort.

  10. If every judge in the country was under thirty years old, I could understand how they side with cops and believe the nonsense they say. But how can any judge over thirty believe a cop when he says something like, “I feared for my life”? My only conclusion is that judges (and prosecutors, for that matter) are accessories to not only the crimes committed by cops but the perjury that covers it up. Our system is unfixable.

    1. No one should be allowed to be a judge who has never been the defendant in a criminal case and seen how the system works from that side.

      1. Seems like getting into the system on that side is a good way to ensure that you’re never a defendant, no matter what you do.

  11. The State can confiscate your blood while you’re unconscious (obviously, this is without consent)… but The State cannot ask if you’re a citizen on a fucking census

    1. Well, it can, it just has to not make up BS reasons for doing it, apparently (I’m not saying I agree with the decision, fyi).

      1. Just like it can penaltax you

  12. Shackford, read the decision. This is NOT a slam dunk for cops.

    On remand, Mitchell may attempt to show that his was an unu-sual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reason-ably judged that a warrant application would interfere with other pressing needs or duties. Pp. 16–17.

    At the trial court stage, the state even admitted that this was not a case of exigent circumstances. Instead, the state leaned heavily on the “implied consent” demand under Wisconsin law. As Sotomayor pointed out, “Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here. In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

  13. “Thomas argued that police should be able to draw blood without warrants in drunken driving cases to preserve the evidence, period.”

    Just as it says in the original text of the constitution he likes so much.

  14. She also noted that advances in technology and communications have made it relatively easy for judges to give warrants “within 5 to 15 minutes.”

    Exactly. And it will be granted.

    So it’s just a formality, but let’s go ahead and at least keep up appearances, please.

  15. One night when I was working an off duty cop was brought in who had been drinking caused a bad traffic accident with multiple injuries including himself. A member of the trauma team drew a tox screen which was standard procedure and handed it to the nearest cop standing there because of chain of custody rules.

    The cop just went out to the hallway, walked up to the nearest trash can, popped the top off the tube and dropped it in the trash.

    Nobody saw a thing of course.

  16. The dude blew a 0.24 In the field. They took him to a police station for a more reliable breath test. That is good, right?

    But he passed out before he could blow.

    Let’s pick a more sympathetic defendant. Fuck this guy for codifying a bad precedent.

    1. So he went unconscious in the police station.

      First thing is get EMS and get him out of there. If you don’t have that the fire station down the street has.

      Did I miss something?

  17. “Let’s pick a more sympathetic defendant. Fuck this guy for codifying a bad precedent.?

    Bad cases make for bad case law. Butt fuck recognizing that because drinking man bad and never mind he could have been passed out for some other reason.

  18. HELLO renewed HIV epidemic for ethnic cleansing.

  19. I and a guy I know who’s a cop have been getting into it on Facebook about this. We both went to the Citadel (military college, 96% guys), and considering all the mandatory rape prevention talks we were forced to attend, you would think he would be able to recognize that inability to consent doesn’t equal consent.

  20. […] Reason points out, the Court’s judgment actually dodged the major question presented by the case: Whether a state […]

  21. […] Reason points out, the Court’s judgment actually dodged the major question presented by the case: Whether a […]

  22. […] Reason points out, the Court’s judgment actually dodged the major question presented by the case: Whether a state […]

  23. […] Reason points out, the Court’s judgment actually dodged the major question presented by the case: Whether a state […]

  24. […] The U.S. Supreme Court ruled that exigent circumstances allow police to draw blood from an unconscious driver without his permission and without a warrant if the police suspect that the driver is under the influence of alcohol. Today’s decision in Mitchell v. Wisconsin comes just three years after the Court ruled that police generally do need to get a warrant to perform blood tests if a driver does not voluntarily consent. And the Court’s judgment actually dodged the major question presented by the case: Whether a state can force a citizen to consent in advance to unwarranted blood tests as a condition of driving. [Reason] […]

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