Blood Draws And Unconscious Drivers (Part 1)

On June 27, 2019, the United States Supreme Court decided the case of Mitchell v. Wisconsin. The principal issue was whether a driver’s lack of consciousness permits a warrantless blood draw.

Justice Alito wrote for the majority and held in relevant part as follows: Petitioner Gerald Mitchell was arrested for operating a vehicle while intoxicated after a preliminary breath test registered a blood alcohol concentration (BAC) that was triple Wisconsin’s legal limit for driving. As is standard practice, the arresting officer drove Mitchell to a police station for a more reliable breath test using evidence-grade equipment. By the time Mitchell reached the station, he was too lethargic for a breath test, so the officer drove him to a nearby hospital for a blood test. Mitchell was unconscious by the time he arrived at the hospital, but his blood was drawn anyway under a state law that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so.

The blood analysis showed Mitchell’s BAC to be above the legal limit, and he was charged with violating two drunk-driving laws. Mitchell moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreasonable searches” because it was conducted without a warrant. The trial court denied the motion, and Mitchell was convicted. On certification from the intermediate appellate court, the Wisconsin Supreme Court affirmed the lawfulness of Mitchell’s blood test.

The judgment is vacated. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant.

This holding is not surprising when considering that the focus in blood draw cases is on the effect that the process and the use of a needle has on person being tested. When they are unconscious, the argument is that the search is reasonable because they are not in a state of terror that many people feel when confronted with the use of a needle. It would make for an interesting case if the subject were coming in and out of consciousness during the blood draw procedure.