Cops Can Draw Blood From Inert Suspects, Justices Say

By Cara Bayles | June 27, 2019, 7:56 PM EDT

Drawing blood from an unconscious drunk driving suspect does not amount to a warrantless search, the U.S. Supreme Court ruled Thursday, in a decision that put some criminal defense advocates on edge.

Blood alcohol levels dissipate rapidly, and police frequently have other roadside emergencies to attend to, Justice Samuel Alito wrote in 5-4 opinion. The time crunch caused by both triggers the “exigent circumstances” exception to the Fourth Amendment’s ban on unreasonable search and seizure, he said.

“Police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities — such as attending to other injured drivers or passengers and preventing further accidents — may be incompatible with the procedures that would be required to obtain a warrant,” Alito wrote. “Thus, when a driver is unconscious, the general rule is that a warrant is not needed.”

The majority vacated and remanded petitioner Gerald Mitchell’s case, saying it was “unusual,” because he could have argued that a warrant application wouldn’t have interfered with officers’ “other pressing needs or duties,” but he hadn't  raised that question in the lower courts, and the justices said he should get “a chance to attempt to make that showing.”

But civil liberties advocates such as Myesha Braden, director of the Lawyers’ Committee for Civil Rights Under Law’s criminal justice project, worry about the larger implications of the high court’s finding that police “may almost always order a warrantless blood test” for drivers who are unconscious or in a “stupor.”

“I think it’s always a problem when exigent circumstances is used as a rationale for discounting a very clear constitutional right in the policing and law enforcement context,” Braden said. “It’s a dangerous precedent and a slippery slope.”

The case, one of the last decided as the high court wrapped up its term Thursday, pitted Fourth Amendment advocates against state legislatures and anti-drunk driving activists.

It stems from Mitchell’s 2013 arrest on a Lake Michigan beach in Sheboygan, Wisconsin. Police officers said that they found Mitchell shirtless and stumbling, that he admitted to having earlier driven his vehicle and drinking, and that he failed a preliminary breath test. By the time he was driven to a police station for an evidence-grade test, he had passed out, and he was unconscious at the hospital when officers ordered his blood drawn.

Mitchell, who had several previous drunk driving convictions, challenged the blood evidence in court, arguing that his Fourth Amendment protections had been violated by a warrantless search.

The state countered that Mitchell agreed to the test under Wisconsin’s “implied consent” law, which relies on the premise that by using public roads, drivers agree to sobriety tests if there’s reason to believe they may be driving drunk. Similar laws exist in every state.

In a dissent Thursday, Justice Sonia Sotomayor criticized the majority opinion for taking up an argument the Wisconsin Attorney General’s Office hadn’t made. The state had relied on its implied consent law and conceded that officers had time to get a warrant, she said, yet “the plurality needlessly casts aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin does not urge, that the state courts did not consider, and that contravenes this court’s precedent.”

Justice Neil Gorsuch said the court should have dismissed Mitchell’s appeal and waited for a more on-the-nose case to rule on the exigent circumstances question. He echoed Justice Sotomayor’s criticism that the court “decline[d] to answer the question presented.”

But that may have been a blessing in disguise for the DUI defense bar, according to Donald Joseph Bartell of Bartell Hensel & Gressley, who represented the California DUI Lawyers Association when it filed an amicus brief siding with Mitchell. Bartell said he agreed with Justice Sotomayor’s dissent, but that the ruling could have been worse.

In a concurring opinion, Justice Clarence Thomas said that it would be easier on everyone if the court set out “a straightforward rule” that an exigency exception is triggered by the body’s rapid metabolization of alcohol, because it means “probative evidence is dissipating by the minute.” That rule would have had a far wider scope, said Bartell, and wouldn’t have applied only to unconscious suspects.

“We were worried they were going to make some wholesale exception to the warrant requirement,” Bartell said. “It’s a fairly narrow decision. I think it’s a victory for the defense bar, and for Americans, too.”

Wisconsin Attorney General Josh Kaul also considered the opinion a victory.

“This law helps protect communities from impaired drivers,” he said of the implied consent statute. “We are pleased that the U.S. Supreme Court has upheld a Wisconsin law that promotes public safety.”

--Additional reporting by Andrew Strickler. Editing by Peter Rozovsky.