Mitchell v. Wisconsin – No Warrant Needed for Blood Draw if Unconscious

The US Supreme Court held in Mitchell v. Wisconsin that police do not need to even try to get a warrant for a DUI blood draw if the suspect is unconscious or if the person was in a car wreck.

Although the issue presented to the US Supreme Court was whether Wisconsin’s implied consent laws permit police to take a blood draw without actual consent and without a warrant (a question the Supreme Court has already answered in the negative), the US Supreme Court instead found that exigent circumstances will justify a warrantless blood draw any time that a DUI suspect is unconscious – a different question that was not briefed or argued by the parties.


As I’ll discuss below, most of the reasons given by the Court are shamefully dishonest.

State legislatures, state appellate courts, and the US Supreme Court value harsh DUI enforcement more than they value the Fourth Amendment rights of citizens. They can’t just say that and be done with it, so they must try to provide “facially valid” reasons for why they are announcing a new exception to the Fourth Amendment.

No Warrant Needed for a Blood Draw if Unconscious or if There is a Car Wreck

Mitchell was found by police “wandering near a lake,” and “stumbling and slurring his words.” Although he was not driving when the police arrested him, they had received a report that he was driving a van while intoxicated, and a van was near the location where he was found.

Police could not give him a breath test because he was “too lethargic,” so they drove him to a hospital for a blood test. He fell asleep on the way to the hospital.

At the hospital, the officer read the implied consent rights to Mitchell, who was asleep. “Hearing no response, [the officer] asked hospital staff to draw a blood sample.”

No Warrant Need for a Blood Draw if Unconscious

The US Supreme Court held that the officer did not need to even attempt to get a warrant because Mitchell was unconscious. It did not matter if it was possible or practicable for the officer to get a warrant.

The Court just created a bright-line rule that, if you are unconscious, police do not need to get a warrant. They based their decision on the exigent circumstances exception to the Fourth Amendment’s warrant requirement – no warrant is needed if there is an emergency that would prevent an officer from going and getting a warrant.

The emergency, in this case, is that the person is unconscious plus the fact that alcohol dissipates from the bloodstream over time.

No Warrant Needed for a Blood Draw if There is a Car Wreck

Not only did the Court hold that no warrant is needed for a blood draw if a person is unconscious, but they also provided their interpretation of Schmerber v. California as another bright-line rule that no warrant is needed if there has been an auto accident…

They distinguished McNeely v. Missouri, where the Court held that a warrant is necessary for a blood draw except when it is not practicable for the officer to seek a warrant, interpreting McNeely as holding that a warrant is required only in “ordinary” DUI cases.

Why the Opinion is Not Only Wrong But Dishonest

The Supreme Court is once again chipping away at the Fourth Amendment’s protections. Why?

The majority chooses security over freedom.

It may be acceptable to choose security over freedom – it’s a tension that has existed in the law since the founding of our nation. It is not acceptable to abrogate the freedoms guaranteed in our Bill of Rights to achieve that security, however. That’s the whole point of the Bill of Rights – to give us an immutable document that prevents our government from becoming authoritarian.

The majority’s bias is readily apparent in the opinion, and they cannot get to their conclusion without being dishonest. What do I mean?

Exigent Circumstances was not the Question Presented

Sotomayor’s dissent points out:

The Court granted certiorari to decide whether a statute like Wisconsin’s, which allows police to draw blood from an unconscious drunk-driving suspect, provides an exception to the Fourth Amendment’s warrant requirement.

The question presented was whether Wisconsin’s implied consent laws provide an exception to the Fourth Amendment. It’s a ridiculous question that has already been answered by the Supreme Court in both McNeely and Birchfield v. South Dakota.

A statute cannot, in and of itself, be an exception to the Fourth Amendment. And both McNeely and Birchfield held that, unless it is impracticable to get a warrant due to exigent circumstances, officers must get a warrant before drawing blood.

What’s the problem?

The question presented was not whether exigent circumstances justified a warrantless blood draw. The State of Wisconsin conceded that they had time to get a warrant. Their argument was that they do not have to get a warrant, period, because their implied consent statute says so.

What? Let’s read that again:

The State of Wisconsin conceded that they had time to get a warrant.

Because the State of Wisconsin conceded that they had time to get a warrant, the lower courts never addressed whether exigent circumstances justified their failure to get a warrant and the parties never argued it.

Appellate courts don’t just make policy decisions based on their view of the seriousness of an issue like drunk driving – they interpret the law and the Constitution based on the record below. There was no record below on exigent circumstances – it wasn’t even a question in the lower court. It wasn’t researched, briefed, or argued, and, therefore, there was no record or ruling from which to appeal that question.

The Court Held that the Seriousness of a Crime Impacts Whether a Defendant is Entitled to Fourth Amendment Protections

The Court extensively discussed the horrors of DUIs, the number of people killed in alcohol-related fatalities, and the seriousness of the crime. The majority says point-blank that the seriousness of the crime justifies a warrantless blood draw:

Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk. It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.

Due to the seriousness of the crime and the wantonness of the behavior, police can force a blood draw without a warrant any time there is probable cause for DUI and the person is taken to the hospital:

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.

What about murder?

That’s a serious crime that poses a serious risk to persons nationwide. Can we do away with the Fourth Amendment for murder suspects also?

A Suspect’s Unconsciousness Does Not Affect an Officer’s Ability to Get a Warrant

In many jurisdictions, an officer can obtain a search warrant within 5-15 minutes – a fact that the majority opinion conveniently ignores, but Sotomayor points out in her dissent:

In the federal system, magistrate judges can issue warrants based on sworn testimony communicated over the phone or through “‘other reliable electronic means.’” McNeely, 569 U. S., at 154 (quoting Fed. Rule Crim. Proc. 4.1). In a sizable majority of States, police officers can apply for warrants “remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.” McNeely, 569 U. S., at 154; see ibid., n. 4 (collecting state statutes). And the use of “standard-form warrant applications” has streamlined the warrant process in many States as well, especially in this context. Id., at 154–155. As a result, judges can often issue warrants in 5 to 15 minutes.

There is already going to be a delay while a person is transported to the hospital. If an officer attempts to get a warrant but is unable to, McNeely already provides an exception for that.

When an officer does not even try to get a warrant – even worse, admits that he could have gotten a warrant if he had tried – there is no honest argument that exigent circumstances exist that would justify a warrantless blood draw.

Does an unconscious person’s blood alcohol content dissipate more rapidly for some reason? No. From the dissent:

…an unconscious person’s BAC dissipates just as gradually and predictably as a conscious person’s does…

…the process for getting a warrant remains the same. All told, the mere fact that a person is unconscious does not materially change the calculation that the Court made in McNeely when it rejected a categorical exigency exception for blood draws.

Lawless Roadways

The majority’s justification for doing away with the Fourth Amendment’s protection against unreasonable searches is dishonest. Because they cannot say, “we support law enforcement and DUI enforcement is more important than constitutional rights,” they must provide some rationale for their decision even if it is transparently biased.

From the dissent:

Contrary to the plurality’s fear mongering, in other words, a small delay to obtain a warrant is hardly a recipe for lawless roadways…

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.

Forcing police to respect the Fourth Amendment will not result in lawless roadways. On the other hand, allowing police to ignore the Fourth Amendment does, literally, result in lawless roadways.

Are intoxicated drivers who cause accidents, injuries, and death a serious concern in our society? Absolutely.

Do our constitutional rights change depending on the seriousness of the crime we are accused of? Apparently now they do.

Myrtle Beach DUI Defense Lawyer

Attorney Daniel A. Selwa is a DUI defense attorney who accepts cases in Myrtle Beach, Conway, Georgetown, and Horry County, SC.

If you have been arrested and charged with DUI in Myrtle Beach, call now at (843) 492-5449 or fill out our email contact form to speak with a SC DUI defense attorney today.

no warrant needed to draw blood if unconscious

Share this post to social media...