Drunk Driving, Blood Draws, and the Fourth Amendment After Mitchell v. Wisconsin

The Supreme Court deals with the unconscious driver.


Last week, in Mitchell v. Wisconsin, the Supreme Court added a new chapter to the Fourth Amendment rules on testing for blood alcohol content in the enforcement of the drunk driving laws.   When the government tries to prove drunk driving in court, it's very helpful for the prosecution to have a reliable test of the driver's blood alcohol content.  This means that when the government has probable cause to believe that a person has been driving drunk, officers will want to test the person's blood alcohol level through either a breathalyzer test or a blood draw.  The Fourth Amendment question is, when can the government order either test without a warrant?

This post will discuss that broad problem and the specific part of it that Mitchell helps answer.  It will do so in six parts. (I know, that's too many parts!  But there's a lot of important context here, and all four readers interested in this topic won't mind. So six parts it is.)  The first part explains why this is a particularly difficult question for Fourth Amendment law. The second part summarizes the holdings of the recent cases on this issue before Mitchell.  The third part explains the facts and rationale of Mitchell. The fourth part looks closely at Mitchell's surprisingly complicated rule.  The fifth part offers some normative reactions to the case.  The sixth part concludes with some thoughts on rules and standards in Fourth Amendment law.

A warning before I start. This is a pretty complex and somewhat arcane area of Fourth Amendment law, so it's possible I may make some mistakes.  If you think I erred, please let me know. I'll make corrections as soon as I can.

I.  Why This Is Hard

It's helpful at the outset to appreciate why the rules for blood and breath tests in drunk driving cases might be pretty difficult for the Justices.  On one hand, it's clear that both blood and breath tests should be a search.  Both force the retrieval of evidence inside the body and expose that evidence to the government. Both are searches of a person.  That part is easy.

On the other hand, identifying when those searches are constitutionally "reasonable" is much harder.  Searches typically are reasonable if the government has a valid search warrant or an exception to the warrant requirement applies.  Everyone agrees that the government can get a warrant to conduct a breath test or a blood draw.  The important and contested question has been when such tests can be allowed without a warrant under one of the warrant exceptions.

That's a hard problem because the facts of blood and breath draws resonate with several different warrant exceptions without being obvious fits in any of them.  Consider a few possibilities:

  • The exigent circumstances exception.  This exception applies when evidence may be destroyed before the government can get a warrant.  Alcohol in the blood naturally dissipates over time: Does that create exigent circumstances to do a test without a warrant?
  • The search incident to arrest exception.  The Fourth Amendment traditionally permits a search of a person upon their arrest for evidence without a warrant.   When the government arrests someone for drunk driving, does the "evidence" that can be obtained under the exception include their breath or blood to get the alcohol levels?
  • The consent exception.  States have adopted "implied consent" laws that say that a person who is arrested for drunk driving impliedly consents to an alcohol test as a condition of driving in the state.   When a person is arrested, does this consent kick in and make the search something that the driver has consented to by driving?
  • The general reasonableness exception.  The modern Supreme Court sometimes rules that searches or seizures are reasonable without a warrant because it advances important law enforcement interests while not substantially infringing on privacy interests. Are either blood tests or breath tests reasonable on these grounds?

All of these arguments are at least facially plausible.  But none of them are perfect fits.  And to make matters more complicated, there are different kinds of tests that could be administered.  There are preliminary field breath tests that aren't very reliable.  There are breath tests on more reliable machines back at the station house.  And there are blood draws typically done by medical professionals.  It's not easy to figure out what the rules should be.

II.  The Key Precedents: Schmerber, McNeely, and Birchfield

Now on to the some cases.  There are three precedents that you need to know to understand the new decision in Mitchell.

The first case is Schmerber v. California, from way back in 1966.  The Court held that the exigent circumstances exception applied "on the facts of the present record" to permit a physician to draw blood at a police officer's direction from a motorist who crashed his car into a tree and was being treated for his injuries at the time of his arrest for drunk driving.  Given the time that had elapsed after the crash before the driver's arrest, and the reasonable way that the blood draw was performed, the blood draw was reasonable under the exigent circumstances exception.

The second case is Missouri v. McNeely (2013), which considered whether Schmerber's allowing blood draws should apply per se to all drunk driving arrests.  The Court divided, with a majority opinion in some areas and only a plurality in others.  The majority rejected a per se approach, holding that the mere fact of a drunk driving arrest did not necessarily create exigent circumstances for a blood draw.  But the majority's opinion was unusually narrow. It only ruled that the exigent circumstances exception approach of Schmerber had to be applied on a case-by-case basis.  It did not answer what the cases were where the exception applied.

Next up was Birchfield v. North Dakota (2016), which tried to resolve the uncertainty created by McNeely by addressing how the Fourth Amendment applies to both blood draws and breath tests in light of the implied consent statutes that states have enacted.  Birchfield held that when a person is arrested for drunk driving, a breath test is permitted under the search incident to arrest exception but that a blood test is not permitted under that exception.

A breath test is much less of a big deal than a blood test, Birchfield reasoned. It's less invasive and less risky.  The former is reasonable on a drunk driving arrest while the latter is not.  So when the government arrests someone for drunk driving, they can always conduct a breath test but need special circumstances (such as in Schmerber) to conduct a blood test.  This meant, the Court explained, that refusal to submit to a breath test on arrest could be prosecuted while refusal to submit to a blood test ordinarily could not be.

Birchfield also held that a person could not be held to have impliedly consented to a search if refusal has criminal penalties.  Earlier caselaw had indicated that person could be subject to civil penalties for refusal to go along with implied consent statutes.  For example, if the state wants to take your driver's license away for refusing to consent, it's permissible for them to do so on the ground that you had impliedly consented to a search and then refused to go along with your promise.  But this same rationale did not permit criminal penalties for refusal, the Court held.  Exactly why there should be such a limit wasn't particularly well-explained.  But the Court's rule on this was clear: "[I]mplied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply" are fine, but "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense."

III.  The New Case, Mitchell v. Wisconsin, on the Unconscious Driver

That brings us to the new case, Mitchell v. Wisconsin.  Mitchell deals with the following question: What can the police do if a person is strongly suspected of drunk driving is unconscious and therefore can't give a breath test and can't be asked if they will submit to a blood test?  In particular, if the police want to perform a blood draw on the unconscious person to get a blood sample for testing its alcohol content, is that a reasonable search without a warrant or is a warrant needed?

Here are the facts of the case.  Mitchell was reported driving drunk, and he was soon found totally trashed wandering around a lake on foot near his car.  An officer gave Mitchell a "preliminary breath test," a relatively unreliable field test, which showed he was very drunk.  The officer arrested Mitchell and brought him to the police station for "a more reliable breath test using better equipment," as permitted by Birchfield incident to Mitchell's arrest.  But that didn't work out so well.  Mitchell was so out of it when they reached the police station that the officer couldn't do the breath test and instead drove Mitchell to the hospital.

Mitchell had passed out by the time they reached the hospital and had to be wheeled in.  It turns out that Wisconsin has an implied-consent law that says an unconscious person is presumed not to have withdrawn consent.  But in theory, the law suggests, even an unconscious person should be given a chance to overcome that presumption. So get this: To comply with the law, the officer announced to  the passed-out Mitchell that he had consented as a matter of law but that if he wanted to withdraw his consent, he could.

Mitchell, being unconscious and all, did not respond.  And by not responding, his legally presumed consent was still deemed to exist.  (Gotta love the law, eh?)  The officer asked the hospital personnel to take a blood draw, and they did.  A subsequent analysis showed, unsurprisingly, that Mitchell was blitzed.

Now we get to the legal question: Was the blood draw permitted under the Fourth Amendment?

Yes, the Court ruled.   Specifically, Mitchell answered this question in a plurality opinion by Justice Alito that is controlling under Marks because it is narrower opinion than Justice Thomas's concurrence in favor of the same side.  According to Justice Alito, an officer can "almost always" direct hospital personnel to conduct a blood test on an unconscious person when the officer has probable cause to arrest the motorist for drunk driving and no reliable breath test has been given.

Perhaps the most surprising part of Mitchell is the warrant exception the Court applied. Wisconsin's brief focused on three warrant exceptions: consent, general reasonableness, and search incident to arrest.  But the plurality opinion, as well as Justice Thomas's fifth-vote concurrence, relied instead on the exigent circumstances exception.

Specifically, the plurality saw the driver's unconsciousness as a special situation akin to the traffic accident that had allowed the blood draw in Schmerber.   Although McNeely held that the "constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs."  According to Justice Alito:

exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

Why does unconsciousness matter so much?  When a driver was unconscious, a reliable breath test wasn't possible.  Only a blood draw could be conducted.  And getting accurate alcohol numbers was extremely important to prove a person had driven intoxicated, greatly facilitating the enforcement of drunk driving laws that seek to avoid tens of thousands of deaths every year.

Further, for the police, coming across an unconscious driver was likely to trigger a sequence of events to help the driver that was inconsistent with getting a warrant.  The police were likely to be rushing the driver to the hospital and perhaps saving lives at a possible crash scene, during which the officer was unlikely to be able to take time out to go get a search warrant. In the emergency scenarios created by unconscious drivers," Justice Alito wrote, "forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs."  Further, an unconscious person was likely to have his blood drawn by the hospital personnel anyway as part of the driver's medical care.  Amidst that process, a blood draw for evidence wasn't that much of an additional invasion.

IV. Mitchell's Surprisingly Specific Rule

Does this mean that the police can always do a blood draw of an unconscious driver suspected of having been drunk behind the wheel?  No, it doesn't.  Justice Alito's rule is actually pretty subtle and complex.  At the end of his opinion, Justice Alito lays it out:

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 a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

Note that because Justice Thomas had a broader rationale in his fifth-vote concurrence—Justice Thomas reasoned, consistently with his McNeely dissent, that exigent circumstances always applies to permit a blood draw when a person is arrested for drunk driving—that the plurality's rule above is the governing rule under Marks.

Let's parse the paragraph.  There's a lot there.

First, the rule appears to assume not only probable cause, but also that the driver has been taken to a hospital or something similar.  So we're dealing with hospital-conducted blood draws, not the officer acting by the side of the road.

Second, the rule still applies if an officer has given the driver an unreliable field breath test but does not apply if the officer has given the driver "a standard evidentiary breath test."  If the government has been able to do a relatively reliable breath test, typically back at the police station, then the government already has its good evidence and likely lacks the exigent circumstances that would justify a blood draw of an unconscious motorist to get what should be pretty similar evidence.

Third, the rule does not apply "in an unusual case" where "a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties."

I'm not entirely sure, but I think that language above should be read as imposing two requirements in the conjunctive. For the rule not to apply, the person must both show that his blood would not have been drawn in the ordinary course of his medical care and also that the police were not so busy with other pressing duties that they could have reasonably thought getting a warrant would interfere with that.

Because the record doesn't say if those requirements were met in Mitchell's case, the Court vacates the decision below and remands for further proceedings without applying its own new rule to Mitchell's case.

V.  My Normative Take on Mitchell

What should we make of Mitchell?  My own sense is that it's a relatively narrow decision that is pretty sensible on pragmatic grounds.  Here are a few thoughts on why.

First, I was glad that the controlling plurality opinion in Mitchell didn't adopt the really scary argument the state made about implied consent.  The state had argued that because penalties for refusal were only civil, Birchfield permitted the legally implied consent to be considered real consent for Fourth Amendment purposes.  That was a very troubling position.  It would treat the enactment of a statute saying a person consented in a particular situation as sufficient evidence that a person actually did consent.  Giving a legislature the authority to announce that a class of people have consented to Fourth Amendment searches even when they actually haven't would be an easy way to eliminate Fourth Amendment rights.  The plurality didn't adopt that argument, and that's a very good thing.

Second, I think the controlling plurality test gives the police clear guidance without creating any troubling incentives.  When officers make an arrest for drunk driving, they will still want to bring the person to the station house and do a reliable breath test once there as Birchfield permits. The Mitchell plurality rule kicks in only when the person has passed out and no reliable breath test has been done—and that point, no reliable breath test can be done.

At that point, after the officers have brought the unconscious person to the hospital, they can request the medical professionals to do a blood test without a warrant as long as the warrantless blood draw isn't some sort of weird outlier step when no blood draw would have been conducted otherwise and the officers aren't just sitting around and could have obtained a warrant.  Try the less invasive breath test first, the law is telling officers, and only do a blood draw if there's no other way to get a reliable test and the hospital personnel do it.  And then get a warrant if you have time and it won't interfere with other duties, but you don't need a warrant if you don't have time and it would interfere with your other work.

Admittedly, much of my reaction comes from it not being clear to me how much difference a warrant makes in this particular setting.  In the cases covered by Mitchell, an unconscious driver has been admitted to the hospital.  Probable cause is thought to exist that he was driving drunk.  If a warrant is required, an officer would contact the judge, say he's at the hospital with the unconscious driver, and make the case for probable cause to believe that the person drove while intoxicated.  If the judge agrees, medical personnel would do the blood draw.

But I wonder, how much practical difference does it make whether there is a warrant in that setting?  The probable cause needed to get the blood draw warrant seems the same as the probable cause needed to make the drunk driving arrest.  That arrest is something that the Fourth Amendment has already permitted without a warrant, and for which there already must be a post-arrest review presumptively within 48 hours under County of Riverside.   What does a warrant requirement in that setting add?  Given that the driver is now passed out, it's probably not too hard to show he was intoxicated.  And I would think it is the relatively rare case when whether the person had been driving was in doubt.  The actual draw, to be conducted by medical professionals, is not likely to be conducted in an unreasonable way.  In that setting, it's not clear to me how much a warrant adds.

Justice Sotomayor suggests in her dissent that existing precedents already squarely answered that a warrant was required for a blood draw, and that the plurality rule guts the warrant requirement, "strik[ing] another needless blow at the protections guaranteed by the Fourth Amendment."  "If there is time" to get a warrant for the blood draw, Justice Sotomayor argues, then the Fourth Amendment should require that the police must do so.  Putting aside that I don't think the precedents answered this question, I wasn't convinced that the plurality's rule is so untethered.  As noted above, I would think the effect of the rule is to have medical personnel do the blood draw at the hospital in a circumstance when probable cause is not likely to be in doubt.

That's not to say that Justice Sotomayor's proposed rule was problematic.  I think both the plurality and dissent approaches are reasonable answers to this problem.  But I don't see the plurality approach as somehow out of step with prior rulings or as particularly problematic.

VI.  A Concluding Thought on Rules and Standards

A final thought on Mitchell is that there is a really interesting undercurrent on the choice between rules and standards in Fourth Amendment law.  Some Fourth Amendment exceptions to the warrant requirement traditionally work like bright-line rules—specifically, consent and search incident to arrest.  Other exceptions to the warrant requirement traditionally work like standards—of particular relevance here, exigent circumstances.

On one hand, the Justices in cases like Mitchell and Birchfield and McNeely are presented with recurring circumstances that call out for some kind of rule.  The police run into these situations often, and they need to know when they need a warrant.  On the other hand, the practical problem of when to allow various alcohol tests is also something that calls out for some kind of nuanced standard.  You wouldn't want the police to just arrest people and do blood draws on their own whenever they want, and you wouldn't want the police to have to get a warrant in every case.

I think you see many the Justices in these cases grappling with how to satisfy both concerns at once  They want both a nuanced approach that is also relatively rule-oriented.  So in McNeely, the Court rejected a per se rule of exigency—that's too unbalanced. Then in Birchfield, the Court adopted one clear rule for breath tests and another clear rule for blood draws—two clear rules, but different rules for different tests.  And finally, in Mitchell, the plurality interprets a standard-based exception in a way that leads to a fairly specific set of rules.

Of course, the Justices don't all agree on how to strike the balance. No surprise that Justice Alito will strike the balance differently than Justice Sotomayor.  And Justice Thomas has been an outlier on these issues since McNeely with a bright-line view based on exigent circumstances.  But I think you can see a lot of the Justices really grappling with how to balance the need for rules and standards based on the practical problem confronting them.

NEXT: No Preliminary Injunction, No Pseudonymity, No Sealing in Internet Libel Case

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  1. “States have adopted “implied consent” laws that say that a person who is arrested for drunk driving impliedly consents to an alcohol test as a condition of driving in the state. When a person is arrested, does this consent kick in and make the search something that the driver has consented to by driving?”

    I don’t have a big objection to using other Fourth Amendment doctrines to uphold these laws, but I believe not only that the Supreme Court should never uphold these laws on an implied consent theory (they never have), but they should specifically remonstrate state DMV’s for asserting it and, perhaps, even strike down any statute that allows the search under that theory.

    The legal reason I feel this way is simply because I don’t think the government should be able to get blanket consents for otherwise unreasonable searches in advance. In other words, if the search were otherwise illegal, “implied consent” should never save it.

    The policy reason is that I have found that this whole rubric is, at least in California, dangerous in the hands of the DMV and law enforcement. Because they go off on this to put out a bunch of publications that lie to drivers and tell them they have no Fourth Amendment rights at all in drunk driving cases. And that probably results in a bunch of additional express consents by people who might assert their rights if they knew they had them.

    So the same way Miranda tells law enforcement that you can’t lie to a suspect and tell her that she has no constitutional rights to get a confession, states should be told in no uncertain terms that there is no such thing as “implied consent” and that their materials must accurately tell drivers the basis under which searches are permitted and should never tell drivers they have consented to waive all their Fourth Amendment rights.

    1. I don’t know why we call it implied consent.

      It really should be described as pre-consent or prior consent, or simply consent.

      Obviously certain conditions should be listed in order for the consent to kick in (e.g. displaying signs of inebriation while driving, etc.), so it’s not a blanket consent law enforcement could use at any time.

      But otherwise, I have no problem with states requiring prior consent as a condition of receiving a drivers license.

      1. Consent can be revoked. So if you call it prior consent, but the drunk behind the wheel is combative and non-compliant, that’s not consent any more.

        1. Fine, he wants to revoke the consent, then he loses his drivers license.

          1. You pivoted fairly quickly from quibbling over terminology to making policy proclamations.

          2. Perhaps this case should be thought of like cell phones. Seizing the evidence and searching the evidence are different.

            Taking the blood draw in this case without a warrant would solve the “evidence is being destroyed” aspect and seems reasonable. However, running the lab tests could require a warrant as there is not time pressure on that and if that warrant isn’t obtained, the blood never gets tested unless the, now sober, person agrees to the lab test (which probably won’t happen).

            Also, I’m curious about “consent” in cases like this. Can a seriously drunk person even give meaningful consent — I don’t mean can they move their mouth and say “Yes”, but can they understand and reason enough to give consent? Should the same standard for giving consent as is applied in rape cases be used?

            Also, can a minor give consent to a BAC test or must that consent be given by a parent/guardian? In general, isn’t it the case a minor can’t consent to much of anything else of a legal nature (sex with someone much older, sign legal documents, etc.)?

            1. Sigh… I’ve no idea how the comment ended up here – I entered it at the very bottom and intended it to be “first level” comment.

              (Actually, I have suspicion how that happened and it seems to be a bug related to “cancelling” out of a comment and then entering a “top level” comment. However, fixing this horrible comment software seems like it would likely be like using a tack hammer to demolish a modern US Army tank. Hopefully this abomination of a comment section just gets thrown away and replaced with something from this century soon.)

            2. “Should the same standard for giving consent as is applied in rape cases be used?”

              The challenge there often isn’t whether consent was given, but rather, if it was withdrawn and when, and whether or not the defendant honored the withdrawal of consent (and it sometimes also becomes reasonable to inquire as to whether or not they were in full control of their faculties, at the time, either.)
              The nice thing about implied consent is that the implication of consent occurs before the alleged intoxication even begins, when the person applies for, and receives, a driving license. The challenging edge case then is unlicensed drivers.

      2. I’m not sure you understand the concept of “consent”. Why not just have the state force everybody to consent, and be done with the pesky fourth amendment?

        1. ” Why not just have the state force everybody to consent”

          That’s a problem with understanding the concept of consent, all right.

          What you’re seeing here, though, is “If you don’t consent to X, we won’t consent to Y”. You still have a choice, and if you have a choice, then consent is meaningful.

          1. But to live in modern society, its not really a choice.

            Regardless, implied consent is clearly unconstitutional. It’s a weasily way around the 4th Amendment, approved by Courts who do not want to do their job.

            Travel is a right. Driving is a right. Just because states put some requirements on it to ensure safety (ignore for the moment that I find that unconstitutional), doesn’t mean that other rights are automatically overruled by a nonsense doctrine of “implied consent”.

      3. “It really should be described as pre-consent or prior consent, or simply consent.”

        Its not “consent” at all. Its the government removing your 4th [and imho 5th and 6th] amendment rights in return for letting you receive a routine license. Coerced consent is not consent.

        1. Right. There’s some left-right agreement here. 🙂

          As I said, I am not offended by the notion that if there is sufficient suspicion of drunk driving (erratic driving, violation of traffic laws, etc.), it’s a reasonable search to require some form of chemical test. That seems correct to me in general (we can discuss specific situations, of course).

          But it’s just not consent. Any more than it would be “consent” to say “if you want to have a driver’s license, you have to give up a free speech right” or “if you want to have a driver’s license, you have to give up the right to keep and bear arms”, or “if you want to have a driver’s license, you have to agree to consent to cruel and unusual punishments” or even, under current caselaw, “if you want to have a driver’s license, you have to agree never to have an abortion”. “If you want to drive, you have to give a blanket consent to give up your constitutional rights without regard to specific factual circumstances” just doesn’t fly.

          1. Just doesn’t fly is right because none of those things you listed have any inherent nexus to driving.

            Blood tests for suspected drunk drivers do.

        2. “Coerced consent is not consent”

          When did they put the gun to your head and say “get a driving license or else!”

          Were you just walking past the DMV office when they threw a blanket over you and dragged you inside?

          1. “Consent to x or no driver’s license for you is itself coercive.

            1. If you can walk away, no it isn’t.

              1. If you need better transportation than walking and/or busses, yes it is.

      4. “It really should be described as pre-consent or prior consent, or simply consent.’

        It should be described as a farce.

        In a confrontation between a citizen and an armed police officer any “consent” given is necessarily given under duress and should therefore be considered void. There is no consent, ever, in a police search scenario.

      5. What you describe is not in any meaningful way “consent”. What you describe is a blanket waiver.

        On the one hand, that waiver is in exchange for the “privilege” of driving. On the other hand, public policy and planning commissions at all levels have essentially made that “privilege” mandatory. At that point, it’s not longer even a waiver but a place where the Fourth Amendment simply doesn’t apply.

        If you want to live in a police state, apedad, at least be honest about what you’re describing.

    2. “When a person is arrested, does this consent kick in and make the search something that the driver has consented to by driving?””

      Doesn’t even have to be an arrest, implied consent to search can be triggered by where you want to drive. Back in the days when I was a young man, it was explained to me that driving my car onto the air base gave the APs the authority to search it. You can see the same thing at work at the airport today… if you want to go into the security area, you consent to a search. Nobody’s forcing you to undergo a search, it’s purely voluntary. You also get the same effect by driving near the border.

      1. You also get the same effect by driving near the border.

        Where “near” means “within a hundred miles”.

        Wish I were making that up.

      2. Martinez-Fuente is just wrongly decided, IMO. I don’t think internal checkpoints should be constitutional and the standard for stopping a suspected illegal immigrant should be the same standard as for any other traffic stop. It shouldn’t be suspicionless.

        The airports are a special needs search. You have a confined space and a compelling interest that requires a suspicionless search. But I don’t see how that applies to drunk driving– it is perfectly workable to stop suspected drunk drivers based on suspicion as opposed to just allowing testing at any time.

        1. ” it is perfectly workable to stop suspected drunk drivers based on suspicion as opposed to just allowing testing at any time.”

          In Oregon, at least, “Implied consent” doesn’t kick in until after you’re arrested, and the normal rules for arrest apply.

        2. The airports are a special needs search.

          Not supported by evidence.

          As the TSA has proved for close to twenty years now, they’re way better at harassing law-abiding American citizens then they are at catching terrorists. Locking cabin doors has done more to secure our airways then anything the TSA has or will ever do.

          1. It isn’t even that. Before 9/11, the approach was to give hijackers what they wanted, and recover the airplane and hostages later. Because what the terrorists wanted was negotiating power, not an airplane. The 9/11 terrorists exploited this, because what they wanted was the airplanes, not hostages and not negotiating power. The result is passengers who didn’t sit still to be hostages, and an airplane in a field in Pennsylvania instead of flaming wreckage in the capitol.

            Thing is, the terrorists probably knew this was a one-shot deal, and that’s why they haven’t made much push to steal airliners since then… no point. The passengers won’t sit quietly in their seats.

      3. But it is coerced, violating the right to travel. And implied consent is unconstitutional, because its clearly just their to justify overriding rights.

    3. To use an extreme hypothetical to illustrate the point, imagine a law that says that by driving on the public streets (or by doing so while drunk), citizens show their consent to sex.

      If there is a genuine privacy interest protected by the 4th amendment – and in my view enumerated rights have clearer legitimacy and are more deserving of strong enforcement than unenumerated ones – than it can’t be declared waived by doing something almost everyone has to do to participate in ordinary life. I agree that searches, here, at airports, etc. have to be justified by special exceptions, and agree an implied consent theory simply shouldn’t be allowed.

      1. ” it can’t be declared waived by doing something almost everyone has to do to participate in ordinary life.”

        I don’t agree with your premise. Literally nobody has to drive on public roadways… anybody who does has made the decision to do so.

  2. Doesn’t this sort of reverse the usual burden of proof for warrantless searches? Normally, the state would have to demonstrate that exigent circumstances do exist. Here, it sounds like defendant has the burden that they do not — in “unusual” circumstances, “defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.” And realistically, how is a defendant ever going to meet the second part of that test anyway? I agree it is pragmatic, but am not so sure that it is a narrow ruling.

  3. I realize this is a legal article discussing various arcane points of law. What bothers me about all this is that it can only get more and more complicated as finer and finer legal points are divined.

    In my libertopia, warrants have to be minimal, relevant, concise, consistent, clear, etc; but any party to a case can make up any warrants they want; they are subject to appeals, of course, for violating the constraints listed.

    Where I especially differ is thinking that the best check on unreasonable warrants is to skip all this legal quibbling and cut to the chase: anyone who executes a warrant beyond its stated and appealed limits, and every warrant executed by losing parties, rebounds on those who executed them and/or authored them.

    Draw blood from an unconscious driver and find no alcohol? He gets to do the same to you at a time of his choosing. Leave a mess behind when searching a house and not finding anything? They get to do the same to your house. Impound someone’s car for a month while “investigating” it and find nothing? They get to impound your car for a month, at a time of their choosing. Even if warrants find what was expected, all those by the losing party still rebound. You better be damned sure of your case, or you better be so polite and careful that they are willing to settled for an apology or even just cash.

    It would go a long long way to restoring civility to law enforcement.

    1. Yeah, imagine the administration and bureaucracy that would create. A new Cabinet-level position, the Department of Retribution.

    2. Aside from the obvious practical objections to your proposed remedy, you seem to misunderstand the purpose of search warrant altogether. Warrants aren’t supposed to be based on absolute certainty: they’re based on the relatively low threshold of probable cause. There will necessarily be situations where there is probable cause to believe that a warrant will uncover a certain type of evidence, even though they actually will not — and that’s how it’s supposed to work.

    3. You also ignore when probable cause is present but there are extenuating circumstances. For example, a person swerving all over the road, smashes into the barricade, and then passes out unconscious. You get a warrant, take a blood draw and find nothing. It’s then revealed later that the driver had a stroke.

      Why punish the officer for investigating?

  4. ‘The Fourth Amendment question is, when can the government order either test without a warrant?”

    The OTHER fourth amendment question is “why don’t they get a warrant?” In particular, if they’re passed out, they’re not going anywhere or doing anything (other than breathing) to alter the evidence. Call the judge, explain why you have probable cause to believe that Sleeping Beauty was driving drunk, and get the warrant. Yes, this does mean having a judge standing by to receive those phone calls at 3:15a.m.

    1. Something seems wrong with the argument government doesn’t need a warrant if it has to lift more than one finger to get it.

    2. In a lot of cases, there isn’t a judge available in the early morning. That’s fine, most things that require a warrant can wait until normal business hours. This just happens to be a strange mix (note OK’s discussion about exigent circumstances above) where not much is being destroyed RIGHT NOW, but if you wait until 10am, the driver may no longer be drunk.

      1. One might argue that the unavailability of a state employee to approve state action would be the state’s problem, not the party whose rights are potentially violated.

        1. Bingo.

    3. It’s getting easier with technology, but it still isn’t possible to always get a warrant at 3am. Some counties are too small to have a judge available at all hours, some police departments are small enough or stretched thin enough that they don’t have time to add an extra two hours of processing to get a warrant drafted and signed, sometimes the judge on call is busy with another warrant, etc. And unlike most other kinds of warrants where you can just wait, every minute you have to wait in an intoxication blood draw warrant has the evidence disappearing. By the time you’ve finished processing a scene and brought the suspect back to the police department or a hospital, a considerable amount of time has passed.

      1. Yeah, I am less concerned about the actual obtaining of a warrant, which might honestly be difficult to do in a reasonable timeframe, and more concerned about the quantum of suspicion. In other words, if the police would be entitled to a warrant if one could be obtained, but the search is performed due to exigent circumstances, fine, it should be constitutional. And that should cover most typical situations. But if the police literally have no evidence of drunk driving, they shouldn’t get to search you based on an implied consent theory.

        1. But if the police literally have no evidence of drunk driving, they shouldn’t get to search you based on an implied consent theory.

          What states would allow that under their implied consent laws?

          1. I don’t care. The entire rubric of “implird consent” is about trying to make drivers believe they have given up rights.

            1. “I don’t care” if my theory has any real-world application allows everyone else to not care, either.

      2. “unlike most other kinds of warrants where you can just wait, every minute you have to wait in an intoxication blood draw warrant has the evidence disappearing. By the time you’ve finished processing a scene and brought the suspect back to the police department or a hospital”

        If a minute’s time in performing the blood draw puts the conviction in doubt, maybe the conviction should be in doubt. And they can call out the paramedics to do a blood draw on scene.

    4. In particular, if they’re passed out, they’re not going anywhere or doing anything (other than breathing) to alter the evidence.

      The problem is that the suspect’s ordinary metabolic processes do alter the evidence.

      1. They do. Do they alter the evidence any less if Officer Joe is doing anything other than waiting for the dispatcher to get the blood-draw warrant judge on the phone?

        1. Since they stop altering the evidence once the blood is removed from the suspect’s body, the answer to your question is indeed yes.

          1. Why wait for a trial? Allow Officer Joe to go ahead and impose sentence.

  5. This is a lazy man’s question, because I haven’t done the hard work necessary to find out if the OP answers it, but on the off-chance that it’s a good question: If the police find someone passed out and ostensibly drunk, and they want his blood for some purpose other than proving drunk driving, can they draw blood for that purpose without a warrant?

    1. That wasn’t discussed, no. If they want the unconscious person’s blood for a similar reason (if being drunk is an aggravating factor when charging something other than drunk driving), then maybe this ruling has some value? But if they want the blood for genetic testing or something that doesn’t metabolize out, there’s no excuse to not get a search warrant.

    2. I think the answer is in the article. If it was medically necessary to treat an unconscious person (for example to find out if the person had passed out from low blood sugar) then it would be OK.

      1. How about if the purpose of the law enforcement blood draw was to match evidence from a crime scene?

    3. ” they want his blood for some purpose other than proving drunk driving, can they draw blood for that purpose without a warrant?”

      If the blood is already outside of the suspect’s body, the cops can collect it. If it’s still inside his body, they require consent to take it, or a legal alternative to consent (i.e., a warrant to seize the suspect and remove it, based on probable cause.

      The way implied consent works is that by driving within the state, you’ve authorized a cop who’s arrested you to draw blood to establish your level of intoxication, and failure to allow this blood draw is treated like an admission that you are intoxicated. This is explained in the driver’s manual, which you are supposed to read before heading out to become intoxicated.

  6. I would like to be outraged at the government using an invasive medical procedure without a warrant but lets face it, drunk driving mania killed the 4th amendment some time ago.

    This case is merely an abuse of a corpse.

  7. “you wouldn’t want the police to have to get a warrant in every case”. Why not?

  8. I hate “impliedly” and don’t care if it’s perfectly cromulent or not. Implicit should do.

  9. Doesn’t this case (perversely) incentivize drunks on the verge of passing out to refuse less reliable sobriety tests? If Mr. Mitchell refuses the unreliable test and passes out, his defense lawyer shows reasonable doubt that Mr. Mitchell did his drinking at the site of his arrest, and he winds up with a public drunkenness citation keeping his drivers license. Not a public safety win, to save lazy police from getting a warrant.

    1. I’m not following how the viability of that defense would be affected by either refusing the test or the outcome of this case.

      1. Court says the prior test justifies the unconsented blood draw. Passing out first gets the next case back to SCOTUS.

        1. I think you’re misunderstanding the holding. It’s the existence of probable cause (among other things) that justifies the blood draw — and being too intoxicated to submit to any testing certainly would tend to establish that.

  10. I’m going to go out on a limb and guess that if you pass out in the backseat of a police cruiser after failing a breathalyzer test, then the question will never be if the police are going to legally draw your blood to confirm what’s obvious to everyone, but what the legal reasoning is.

    This isn’t like that Utah nurse case from 2017, where the guy was brought in for non-alcohol related reasons (in that case, police chased a pickup truck into him).

  11. The plurality opinion seems to make a mess of Schmerber. The rule of Schmerber only incidentally refers to extrinsic health, safety, or law enforcement considerations. The language bloc-quoted says as much. Because they had to take S to the hospital and investigate the crime scene, it was impossible to reach a magistrate. The law enforcement utility of investigating the crime scene doesn’t of logical necessity enter the calculus. They might just as well have had to rescue a cat from a tree en route, or had technical troubles with their phones or faxes. The point is that there were legitimate demands on their time which made the warrant impossible.

    But by integrating law enforcement exigent needs in the warrant balancing, the Court confuses two fundamentally different types of exigency. In the first, that which would ideally be done can’t be done, but the violation is excused due to the unusual situation. A blood draw, which should require a magistrate’s prior review, had to be done because the police car had an accident en route to the hospital. In the second, the peculiar dangers presented by the situation means that the police are justified in the use of what would normally be considered excessive force. (“The use of excessive force in the apprehension of the Blues Brothers…”) This is the exigency that justifies things like protective sweeps.

    Exigency isn’t a balancing doctrine. It operates completely outside of the conceptual space of law. When dealing with medicine this strong, the courts need to proceed very carefully.

    1. Thank you for that Turtle Dove. I do hope you stick around, and maybe comment a bit more—especially if you can help find some of the weaker spots in my own comments.

      1. Your comments are invincible, Lathrop. Keep up the good work.

  12. Was gonna say that it’s un-American but it ain’t — America ain’t “America” no more.

  13. Could a state pass a law requiring hospitals/medical centers/etc. to perform a blood draw and preserve the sample in similar situations? Once the blood is out of the body, alcohol stops dissipating, so at that point the cops have all the time in the world to get the warrant to obtain the sample and test it.

    1. I’m not sure there’d be political traction for a law, but I can tell you that we often get warrants for “hospital blood.” Hospital cooperation (ie. preserving the sample for sufficient time for us to get the warrant) is inconsistent. Bear in mind that in California anyway, the phlebotomists that draw the law enforcement sample don’t work for the hospital– they contract out to law enforcement and follow procedures that the CA legislature has set forth. Hospital blood is drawn by actual trained medical professionals, so their procedures are frequently attacked as unsound by hired gun defense experts.

    2. No, because that still runs into the problem of the government searching a person without a warrant. Even if they have to get a warrant to later test it, the drawing of the blood is a search. If the hospital is performing it only at the behest of the government — whether the police saying “draw this blood” or a law telling them to do it — then it’s still a government search.

      1. @KenveeB, is it necessarily though? The law requires private individuals and companies to get information from others in all kinds of situations, are those all searches? The law says if I sell something to a pawn shop (or a video game store, or a book store, anybody that resells things as a business basically), they have to record my driver’s license. Is that a search? If it is, does it fall under some other exception like administrative searches?

        If that’s a problem, it could be partially gotten around (and this gets at @IamtheBruce’s point some) by requiring that IF a hospital does a blood draw, the hospital preserve it for a certain length of time.

        1. requiring that IF a hospital does a blood draw, the hospital preserve it for a certain length of time.

          I think there are strong arguments why this kind of potential evidence should be in scope of the physician-patient privilege. It is a potentially inculpating disclosure by the patient to the medical practitioner that can be every bit as essential to proper treatment as any oral communication.

  14. “That’s a hard problem because the facts of blood and breath draws resonate with several different warrant exceptions without being obvious fits in any of them. ”

    Maybe SCOTUS should take this as a clue that they have created too many exceptions to the warrant requirement and they need to do some pruning.

    1. Maybe SCOTUS should consider the possiblility that if it requires the courts to sort out all of this – everything is already far to complicated.

      No one should be subject to government taking their life, liberty or property under circumstances that require an army of lawyers and the highest court in the land to sort out.

      If the average police officer – half of whom have an IQ under 100, can not grasp easily what the rules are, then the rules are too complicated.
      I would further note that the average police officer should be expected to take whatever freedom the courts provide them and take it as far as they can.

  15. Orin, there’s a bigger question that wasn’t even asked in this case: Is it “drunk driving” when someone is not driving?

    Mitchell was reported to have jumped into a van and driven away, but police did not find him driving. They did not observe him driving. They found him wandering around a lake, on foot, near the van in question.

    But, everything in the ruling calls him a “driver”, when he was not actually driving when police encountered him and arrested him.

    1. What ? You thought the facts of a crime had to be proven beyond a reasonable doubt ?

  16. No I do not see any of this as reasonable.

    Real world complications that make the task of the government more difficult are NOT EVER a justification for infringing on rights.

    A right is by definition something that government is supposed to protect, not trample, and something that is not easily infringed.

    One of the reasons for limited government is specifically so that government does not take on more obligations than it can possibly perform.

    Regardless, whether a police officer or an ordinary person, if circumstances arrise where we have to choose between the possible prosecution of someone for a crime – even a more serious crime that drunk driving, and helping someone who is in very real need – I would hope we would all help the person in need.
    We would not try to play this idiotic game claiming that because I had to help another person, that I can now ignore your rights and prosecute you. To the extent that exceptions to the 4th amendment exist, they should be incredibly narrow.

    Further we should NEVER provide law enforcement an easy out, because we can be sure they will take it. Nor should we blame them when they do. When our courts create incentives for law enforcement to be creative in finding ways to infringe on our rights the fault lies with the courts. Law enforcement is just doing its job and following the incentives given.

    Nothing in 4th amendment law today is even remotely reasonable.

  17. Why are we so hung up about privacy? Are not the lives of children more important than privacy? /sarc

  18. If it requires 6 posts to discuss a topic, the benefit of doing blog posts over writing a journal article would appear to be diminished.

  19. “Impliedly consents”? Land ‘o Goshen that’s an awkward phrase. Consents by implication? Presumptively consents? Can be inferred to have consented? Did *not* consent, but too bad?

    But maybe the real issue with “Alice impliedly consents” is that it attributes an active choice to Alice that she fundamentally did not make. Alice chose to _drive_, and so the law states that Alice’s consent to a breath test may be assumed for law-enforcement purposes. That’s not a bad idea, but Alice didn’t really *consent* to anything. She just wasn’t asked.

  20. Another way the courts failed to do their job.

    The argument in the case comes down to BECAUSE DRUNK DRIVING.

    It’s really not that hard. The answer is no, they can’t draw blood without a warrant.

    Problem solved.

  21. “The law REQUIRES you to do A or B.”
    “Okay, B.”
    That is “assent,” not “consent.”

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