Split 4 ways, justices OK warrantless blood draw for unconscious driver

The U.S. Supreme Court has ruled in a plurality decision that law enforcement officers can generally draw blood without a warrant from an unconscious person suspected of driving drunk or while on drugs. Concurring and dissenting justices warned the court was establishing cumbersome and difficult guidance for authorities facing such situations.

The high court issued its ruling Thursday in a case involving a Wisconsin law about impaired driving.

The question before the Supreme Court had to do with what happens when a motorist suspected of driving under the influence of drugs or alcohol is unconscious, generally as a result of a crash. Wisconsin law said that in that case, blood can be drawn even without a warrant.

Lawyers for a driver who had blood drawn under those circumstances had argued Wisconsin’s law violates the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Justice Samuel Alito, in a plurality joined by Chief Justice John Roberts and justices Stephen Breyer and Brett Kavanaugh, held that such searches generally do not offend the Fourth Amendment. But the court vacated the Wisconsin Supreme Court order affirming the lawfulness of Gerald Mitchell’s blood test.

“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 (blood alcohol content) 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,” Alito wrote.

Justice Clarence Thomas concurred in result, but called the plurality’s order “a difficult-to-administer rule” and wrote that the fleeting nature of evidence of intoxication should permit authorities to draw blood without a warrant from an unconscious person whom police have probable cause to believe was driving under the influence.

“When police have probable cause to conclude that an individual was driving drunk, probative evidence is dissipating by the minute. And that evidence dissipates regardless of whether police had another reason to draw the driver’s blood or whether ‘a warrant application would interfere with other pressing needs or duties,’” as the plurality held, Thomas wrote. “The destruction of evidence alone is sufficient to justify a warrantless search based on exigent circumstances.”

Justice Sonia Sotomayor delivered a dissent joined by justices Ruth Bader Ginsburg and Elena Kagan that held the plurality’s ruling was an affront to the Fourth Amendment in a case where the issue was narrow.

“The State of Wisconsin conceded in the state courts that it had time to get a warrant to draw Gerald Mitchell’s blood, and that should be the end of the matter,” Sotomayor wrote. “Because 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, I respectfully dissent.”

Justice Neil Gorsuch wrote a half-page dissent in which he said the case should have been dismissed as “improvidently granted.”

“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees — by the very act of driving — to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground — citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed.”

The case is Mitchell v. Wisconsin, 18-6210.