Warrantless DWI Blood Draw Spurs Pushback at High Court

WASHINGTON (CN) – Wisconsin lawyers faced stiff questions from the liberal contingent of the Supreme Court on Tuesday as they defended the state’s failure to get a warrant before drawing blood from an unconscious driver.

When police arrested Gerald Mitchell on the beach in Sheboygan, they said he was feet away from his van, stumbling and acting belligerently. A breathalyzer test showed Mitchell was intoxicated at three times the legal limit for driving, and police promptly brought Mitchell to the station.

Mitchell’s condition deteriorated once there, however, and police escorted him to a hospital. Mitchell passed out en route, and he was still unconscious when police read him a statement in the hospital informing him of an impending blood draw to test his alcohol levels. 

Later charged with driving while intoxicated, Mitchell fought unsuccessfully to suppress those results. 

But assistant public defender Andrew Hinkel called it clear Tuesday that Mitchell’s rights to reasonable search and seizure were grossly violated. 

“Consent is a question of fact,” said Hinkel, addressing the justices of the U.S. Supreme Court in a rare afternoon argument.

Hinkel said the state improperly relied on an unconstitutional theory to test Mitchell when he was unable to provide consent.

“They believe: get a warrant if you can,” he said. “And if you can’t, you don’t have to.”

Hinkel argued that, in order to substantiate a warrantless search and seizure of something as personal as one’s blood, there must be some indication of an impediment to obtaining that warrant within a reasonable amount of time.

For Chief Justice John Roberts, however, the case may turn not on impediments but of “implied consent and privilege.” 

“It’s a privilege to drive on the roads and if you do it, you consent [to blood-level alcohol testing],” Roberts said. “Exigency is an aspect to obtaining a warrant in this case because, for example, alcohol dissipates quickly in the blood.”

But Justice Sonia Sotomayor appeared unswayed about the essence of time in such cases.

“Invading someone’s body is a different level of intrusion,” she said.

In principle, if one is on the road, they know the law well enough to know that if drunk, they are driving intoxicated.

“That is reasonable … but how reasonable is it to expect that people know [a possible] invasion of their blood is part of that plan?” she asked.

Justice Ruth Bader Ginsburg likewise drilled into Assistant Wisconsin Attorney General Hannah Jurss for arguing that there is “presumed consent” the moment a driver gets behind the wheel.

“Presumed consent? That’s fiction. It’s not consent,” Ginsburg said, noting that the idea of “presumed consent” is rooted more in legal theory than reality.

You either consent or you do not, the justice explained.

Ginsburg also shredded Wisconsin’s theory that waiting for Mitchell to wake up chilled its ability to investigate.

“How difficult is it to get a warrant in this case,” she asked. “The magistrates weren’t available by phone or email? Often it only takes 15 minutes.”

Sotomayor took the lead then when Jurss conceded that the warrant would have taken 15 minutes at minimum, at most 45.

“Why didn’t the police call for a warrant on the way to the hospital?” Sotomayor asked.

“We want the rule to be that you seek medical care first,” Jurss said.

Describing some practical issues associated with obtaining a warrant, Jurss noted that police could be distracted by a crime scene as they contemplate how to proceed with a warrant or there may only be a single officer available. Jurss said any medical care provided as authorities order a blood draw could also unfairly change evidence.

Justice Neil Gorsuch signaled that the issue may be one the states must decide.

“Consent or no consent, if you fail to comply [with the law], there are consequences,” Gorsuch said.

In Wisconsin – and 27 other states, a blood draw is considered a reasonable search, Jurss noted, prompting Gorsuch to ask if the “final word” should come from established state laws.

On rebuttal, Hinkel warned the justices: all of Wisconsin’s examples were textbook examples of exigent circumstances that provided exceptions to obtaining a warrant.

“But that’s not a reason for categorical exception,” he said. “The state is making a lot of assertions that presumptive.”

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