Does a state “implied consent” law that authorizes a blood draw from an unconscious motorist violate the Fourth Amendment?
Case at a Glance
In May 2013, police officers in Sheboygan, Wisconsin, found Gerald Mitchell apparently intoxicated near Lake Michigan. Mitchell’s van was nearby. Officers administered a breath test on site, and then drove Mitchell to the station. Officers then drove Mitchell to the hospital for a blood draw. Although Mitchell was by that time unconscious, an officer read Mitchell a statement required by Wisconsin’s “informed-consent” law and ordered hospital personnel to administer a blood draw. Results showed a blood-alcohol content of .222. Based on this evidence, Mitchell was charged and convicted of driving while intoxicated.
Mitchell v. Wisconsin
Docket No. 18-6210
Argument Date: April 23, 2019
From: The Supreme Court of Wisconsin
By Steven D. Schwinn
The John Marshall Law School, Chicago, IL
Wisconsin law imputes consent for a blood-alcohol test to any person who drives on a public road. The law also says that an unconscious person cannot withdraw consent. But the Fourth Amendment generally requires officers to obtain a warrant for a blood draw, or to show that an exception to the warrant requirement applies. This case tests whether Wisconsin’s informed-consent law violates the Fourth Amendment.
May a state impute consent to a blood-alcohol test to any motorist on a public road, and thus allow officers to order a blood draw without a warrant of an unconscious person, consistent with the Fourth Amendment?
In May 2013, Gerald Mitchell’s neighbor called the police and reported that Mitchell was planning to take his own life. (Mitchell’s neighbor received this information from Mitchell’s sister.) Mitchell’s neighbor found Mitchell in the stairwell of their apartment building, apparently intoxicated and agitated. The neighbor watched Mitchell get into a van and drive away.
Mitchell later testified that on that day he was depressed and decided to kill himself. He drove to the shore of Lake Michigan, where he took about 40 pills and drank vodka mixed with Mountain Dew.
Police located Mitchell walking near the lake, and found his van nearby. Mitchell was belligerent and had trouble staying on his feet. The officers administered a roadside breath test, which showed a blood-alcohol concentration (BAC) of .24. The police then put Mitchell in a squad car and drove him to the police station.
Officers placed Mitchell in a holding cell, where he “began to close his eyes and sort of fall asleep or perhaps pass out,” although he “would wake up with stimulation.” Because of Mitchell’s intoxication, or out of “some type of medical concern,” officers decided to take Mitchell to a hospital for a blood draw. Officers drove Mitchell to the hospital, but, by the time they arrived, Mitchell was unresponsive and “could not be roused.”
One of the officers then read a statement to Mitchell, as required by Wisconsin’s informed consent law, though Mitchell remained unconscious. The officer then directed hospital personnel to draw Mitchell’s blood to test for alcohol concentration. The test, administered about 90 minutes after Mitchell’s arrest, showed a BAC of .222.
Mitchell was charged with operating a vehicle while intoxicated and with a prohibited BAC. Mitchell moved to suppress the blood test results on the grounds that the officers ordered the blood draw without a warrant and without exigent circumstances, in violation of the Fourth Amendment. The state agreed that there was no exigency, but instead argued that Mitchell impliedly consented to the test simply by virtue of driving on state roads, under Wisconsin’s implied-consent law. That law says that any person who drives on public roads in Wisconsin “is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol . . . .” The law further states that a “person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection . . . .”
The trial court upheld the blood draw, relying on the state’s implied-consent law, and Mitchell was convicted of both counts. Mitchell appealed, and the appellate court certified the constitutional question to the Supreme Court of Wisconsin. A divided state Supreme Court ruled that the blood draw did not violate the Fourth Amendment. This appeal followed.
As its plain language says, the touchstone of the Fourth Amendment is “reasonableness.” And as a general matter, a warrantless search is unreasonable, unless it falls within one of the narrowly defined exceptions. Under one exception, the “exigent circumstances” exception, an officer can engage in a warrantless search if there are “exigent circumstances,” for example, in order to preserve evidence from imminent destruction. Under another, the “search-incident-to-arrest” exception, an officer can engage in a warrantless search incident to arrest to locate weapons, for example. And under a third, the consent exception, an officer can engage in a warrantless search if a suspect consents to the search. But consent must be voluntary, as determined by the totality of the circumstances, and a suspect can generally withdraw consent at will.
Wisconsin’s implied-consent law imputes consent for a blood-alcohol test to any motorist on a public road, and allows an officer to order a blood draw of an unconscious person (who, by definition, cannot withdraw consent) without a warrant.
Three years ago, the Supreme Court noted that “[o]ur prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield v. North Dakota,136 S. Ct. 2160 (2016). But at the same time, the Court struck a state’s criminal penalties imposed when a motorist refuses to submit to a blood draw. The Court said nothing about whether an implied-consent law can apply to an unconscious motorist, who, by definition, cannot withdraw consent. That’s the question here.
Mitchell argues first that the implied-consent law flies in the face of the Court’s approach to consent. Mitchell says that the Court requires that the state demonstrate that a person’s consent is “freely and voluntarily given;” that a person can withdraw consent at will; and that a person’s consent must “be determined from the totality of all the circumstances.” But Mitchell claims that he was “[b]y definition . . . unable to give voluntary consent because he was unconscious and unable to exercise volition.” He contends that the state did not even try to meet its burden to establish consent under the Court’s approach. Instead, he asserts that the state Supreme Court simply imputed consent to him under the state’s implied-consent law. He contends that this violated the Court’s approach to consent.
Mitchell argues next that the state cannot impute consent and impose warrantless blood draws while a person is unconscious as a condition of driving on the state’s public roads. Mitchell claims that this is unreasonable, given the balance of interests at stake. On the one hand, Mitchell says that a blood draw is “a significant bodily intrusion that ‘infringes an expectation of privacy that society is prepared to recognize as reasonable.’” On the other, Mitchell contends that requiring a warrant “poses little risk of impeding the State’s ability to obtain BAC evidence.” He claims that advances in warrant procedures, coupled with the inherent time-delay in getting a blood draw, allow officers to obtain a warrant without undue difficulty before ordering a blood draw. Moreover, he says that if particular circumstances do not permit officers to obtain a warrant, they can invoke the exigent-circumstances exception to the warrant requirement, and still obtain a blood draw.
Finally, Mitchell argues that the state cannot justify the blood draw based on a search incident to arrest. He claims that the Court rejected this approach in Birchfield. He says that the same balance of interests, above, shows that a warrantless blood draw is also not a reasonable search incident to arrest.
The state counters that the Court has long approved of implied-consent laws. Quoting South Dakota v. Neville, 459 U.S. 553 (1983), it says that states may impose implied-consent laws that “declare that any person operating a vehicle . . . is deemed to have consented to a chemical test of the alcohol content of his blood if arrested for driving while intoxicated.” The state contends that the only limit on implied-consent comes from Birchfield—that a state may not “impose criminal penalties on the refusal to submit to such a test.” Still, the state notes that even in Birchfield the Court wrote that “nothing we say here should be read to cast doubt on” implied consent. The state claims that Wisconsin’s law falls squarely within the Court’s rulings.
The state argues next that its implied-consent law reasonably applies to unconscious drivers. The state notes again that the Court has upheld implied-consent laws as a general matter, and it says that Mitchell’s argument is only against the law’s application to unconscious drivers. But the state contends that such an application is reasonable. For one, the state asserts that an unconscious motorist can withdraw consent either before becoming unconscious, or after awakening, but that “the Constitution does not require a State to afford the opportunity for him to withdraw it.” According to the state, any other result would illogically give an unconscious motorist greater rights than a conscious one. For another, the state claims that implied consent is a reasonable condition on the significant privilege for driving on the state’s roads. The state contends that its interest in combatting drunk and drugged driving easily outweighs a suspect’s interest in privacy, especially when the suspect is unconscious. The state notes that “[p]robable cause in these scenarios will not be subject to serious dispute,” and that in any event any warrant would have the same narrow and targeted scope of the blood draw—and thus allow the same intrusion. The state claims that the time required for an officer to obtain a warrant could lead to disappearing evidence and even “serious medical consequences for the unconscious driver.”
Finally, the state argues that Mitchell’s blood draw was a valid search incident to arrest. The state says that “this case provides an opportunity for the Court to revisit Birchfield’s search incident to arrest analysis in the context of an unconscious driver.” Now that the Court has a case with an unconscious driver, it argues that that the Court should rule, contrary to dicta in that case, that an officer can order a blood draw of an unconscious motorist as a search incident to that motorist’s arrest.
It goes without saying that drunk driving is a significant nationwide problem. And it may be particularly acute in Wisconsin. As the state notes, “between 2003 and 2012, 2,577 people died in Wisconsin crashes involving a drunk driver, and fatality rates for all age groups exceeded the national average.” Moreover, “on average, there were about 200 alcohol-related fatalities in Wisconsin yearly between 2011 and 2015, and an average of 2,800 alcohol-related injuries each year.”
States bear the brunt of dealing with this problem, and all states have taken measures to address it. Wisconsin’s approach at issue here—implying consent for a blood draw by all drivers, and presuming that an unconscious person has not withdrawn consent—is not unique: 28 other states have a similar provision. Courts are split on whether these provisions violate the Fourth Amendment. If the Court strikes Wisconsin’s law, the ruling could put all of these other laws in jeopardy, removing one approach that states use to crack down on drunk driving.
But as the Court has recognized, a blood draw is a significant intrusion into a person’s privacy. Moreover, states have numerous other effectual, and far less intrusive, ways to enforce drunk-driving laws against unconscious motorists. For example, officers can get a warrant to draw blood. Or they could rely on the exigent-circumstances exception to the warrant requirement, in appropriate circumstances.
While the Court has “referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” Birchfield, 136 S. Ct. 2160 (2016), it has also ruled twice in recent years that particular blood-draw practices and policies violate the Fourth Amendment. First, the Court ruled in Missouri v. McNeely, 569 U.S. 141 (2013), that a nonconsensual warrantless blood draw in a routine DWI investigation violated the Fourth Amendment, where no factors other than the natural dissipation of the suspect’s blood-alcohol level suggested that there was an emergency. Next, the Court ruled in Birchfield itself that a state’s criminal penalty for declining to consent to a blood draw violated the Fourth Amendment.
Those cases don’t necessarily point to a result here, but they do indicate that the Court is sensitive to the significant privacy interests at stake.
Steven D. Schwinn is a professor of law at the John Marshall Law School and co-editor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at email@example.com or 312.386.2865.
Attorney for the Parties
For Petitioner Gerald P. Mitchell (Andrew Robert Hinkel, 608.267.1779)
For Respondent Wisconsin (Anthony David Russomanno, 608.267.2230)
In Support of Petitioner Gerald P. Mitchell
American Civil Liberties Union and ACLU of Wisconsin (David D. Cole, 202.675.2330)
California DUI Lawyers Association (Donald Joseph Bartell, 951.788.2230)
DKT Liberty Project, Reason Foundation, and The Due Process Institute (Jessica Ring Amunson, 202.639.6023)
DUI Defense Lawyers Association (D. Timothy Huey, 614.498.8667)
National College for DUI Defense, Inc. (Donald John Ramsell, 630.665.8780)
Restore the Fourth, Inc. (Mahesha Padmanabhan Subbaraman, 612.315.9210)
Rutherford Institute and the Cato Institute (Dorothy Alicia Hickok, 215.988.2700)