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June 27, 2019

Ruling 5-4, SCOTUS upholds constitutionality of blood test of unconscious driver

The Supreme Court handed down its last notable criminal justice ruling of the Term with a decision in favor of police powers in Mitchell v. Wisconsin, No. 18-6210 (S. Ct. June 27, 2019) (available here).  Here is the (no longer all that) surprising cast of voting characters:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C.J., and BREYER and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion.

Here is how Justice Alito's pularity opinion gets started:

In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases.  First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant.  Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.

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.

Here is how Justice Thomas's fifth vote concurring opinion gets started:

Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving — except when they aren’t.  Compare ante, at 13, with ante, at 16. The plurality’s presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it.  “The better (and far simpler) way to resolve” this case is to apply “the per se rule” I proposed in Missouri v. McNeely, 569 U.S. 141 (2013) (dissenting opinion).  Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring in judgment in part and dissenting in part) (slip op., at 3). Under that rule, the natural metabolization of alcohol in the blood stream “‘creates an exigency once police have probable cause to believe the driver is drunk,’” regardless of whether the driver is conscious.  Id., at ___ (slip op., at 4).  Because I am of the view that the Wisconsin Supreme Court should apply that rule on remand, I concur only in the judgment.

Here is how Justice Sotomayor's dissenting opinion gets started:

The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.

And Justice Gorsuch's dissent is just this one paragraph:

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.  Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.

June 27, 2019 at 10:13 AM | Permalink


I am a defense attorney. I enjoy your blog.

Posted by: Patrick O'Keefe II | Jun 28, 2019 7:14:04 AM

Thanks, Patrick. Nice comments are always appreciated!

Posted by: Doug B | Jun 28, 2019 10:58:54 AM

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