||Supreme Court Update: DUI Blood Draw on Unconscious Driver

Supreme Court Update: DUI Blood Draw on Unconscious Driver

Author’s Note: The United States Supreme Court has issued other decisions on the issue of involuntarily blood draws on suspected DUI suspects.  Before doing a blood draw without a warrant, an officer must determine the category in which the driver fits.  See BOTTOM LINE at the end of this article.

The United States Supreme Court outlined the details of Mitchell v. Wisconsin[1]  as follows:

The sequence of events that gave rise to this case began when Officer Alexander Jaeger of the Sheboygan Police Department received a report that petitioner Gerald Mitchell, appearing to be very drunk, had climbed into a van and driven off. Jaeger soon found Mitchell wandering near a lake. Stumbling and slurring his words, Mitchell could hardly stand without the support of two officers. Jaeger judged a field sobriety test hopeless, if not dangerous, and gave Mitchell a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin. Jaeger arrested Mitchell for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment.

On the way, Mitchell’s condition continued to deteriorate—so much so that by the time the squad car had reached the station, he was too lethargic even for a breath test. Jaeger therefore drove Mitchell to a nearby hospital for a blood test; Mitchell lost consciousness on the ride over and had to be wheeled in. Even so, Jaeger read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%.

Mitchell was charged with violating two related drunk-driving provisions. See §§346.63(1)(a), (b). He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against “unreason-able searches” because it was conducted without a warrant. Wisconsin chose to rest its response on the notion that its implied-consent law (together with Mitchell’s free choice to drive on its highways) rendered the blood test a consensual one, thus curing any Fourth Amendment problem. In the end, the trial court denied Mitchell’s motion to suppress, and a jury found him guilty of the charged offenses. The intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State’s implied-consent law was sufficient to show that Mitchell’s test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. See 2018 WI 84, ¶15, 383 Wis. 2d 192, 202-203, 914 N. W. 2d 151, 155-156 (2018). The Wisconsin Supreme Court affirmed Mitchell’s convictions, and we granted certiorari, 586 U. S. ___, 139 S. Ct. 915, 202 L. Ed. 2d 642 (2019), to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement,” Pet. for Cert. ii.

The Court noted:

Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, 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. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.

In analyzing the case, the Court noted that virtually every state has an implied consent law that basically says that by accepting the privilege of driving on public roads, every driver impliedly consents to a blood or breath test when suspected of operating while impaired.  The Court described that in more than half of the states the implied consent provision includes language indicating that if the suspected impaired driver is “unconscious or otherwise not capable of withdrawing consent “then it is presumed that consent is still valid.

It was noted that the Court has recently analyzed the exigent circumstances exception as well as the search incident to arrest exception to the warrant requirement in the context of forced blood and breath testing. The Court recited their holding in   Missouri  v. McNeely[2], where the Court held that in basic drunk driving cases, with no accident involved, exigency due to the dissipation of alcohol in the blood would not provide the exigent circumstances necessary to conduct the search without a warrant and   Birchfield v. North Dakota,[3] where the  Court held that the search incident to arrest exception to the warrant requirement would justify taking a breath sample, in a “drunk driving arrest, taken alone,” of a conscious suspect, but would not justify forcing a blood sample.

The Court asserted in its analysis: “Because the ‘standard evidentiary breath test is conducted  is conducted after a motorist is arrested and transported to a police station’ or another appropriate facility, ibid., the important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for that kind of breath test.”  The Court noted that “under the exception for exigent circumstances, a warrantless search is allowed when ‘there is a compelling need for official action and no time to secure a warrant.’”

The Court held that: “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…With such suspects, too, a warrantless blood draw is lawful.”

In conclusion the Court wrote:

 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. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.

It is important to note that in this conclusion the Court indicated that in most cases an unconscious subject or subject in a stupor would justify the warrantless blood test but then qualified this by asserting that the suspect could challenge the exigency by arguing that his/her blood would not have been drawn but for law enforcement seeking the blood AND a showing that “police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

Bottom-Line:

1.In basic drunk driving cases, with no accident involved, exigency due to the dissipation of alcohol in the blood would not provide the exigent circumstances necessary to conduct the search without a warrant.

2. The search incident to arrest exception to the warrant requirement would justify taking a breath sample, in a “drunk driving arrest, taken alone,” of a conscious suspect, but would not justify forcing a blood sample.

3. 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.

4. A warrantless blood draw from unconscious suspect many not be valid

a. If suspect can show that only reason blood was taken was due to law enforcement’s desire to prosecute AND

b. That officers could not have reasonably determined that a warrant application would interfere with other pressing needs or duties.

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CITATIONS:

[1] Mitchell v. Wisconsin, 2019 U.S. LEXIIS 4400 (2019).

[2] Missouri v. McNeely, 569 U.S. 141 (2013)

[3] Brichfield v. North Dakota, 136 S.Ct. 2160 (2016).

By |2019-07-02T12:45:29+00:00July 1st, 2019|Legal updates|

About the Author:

Jack Ryan is an attorney in Rhode Island, a graduate Juris Doctorate, Cum Laude Suffolk University Law School. Jack has 20 years police experience as a police officer with the Providence Police Department, Providence, RI. Jack’s law degree and experience as a police officer gives him the unique perspective of the legal and liability issues. Jack is a former adjunct faculty member at Salve Regina University and lectures frequently throughout the United States.