The Supreme Court has ruled that police may, without a warrant, order blood drawn from an unconscious person suspected of driving under the influence of alcohol.
The Fourth Amendment generally requires police to obtain a warrant for a blood draw. But in a 5-4 vote on Thursday, the court upheld a Wisconsin law that says people driving on a public road have impliedly consented to having their blood drawn if police suspect them of driving under the influence. It also said that “exigent circumstances” permit police to obtain a blood sample without a warrant.
Justices Samuel Alito, Clarence Thomas, Stephen Breyer and Brett Kavanaugh joined Chief Justice John Roberts in the majority vote.
The decision conflicts with previous court rulings in which the justices ruled that a blood draw is a significant bodily intrusion into a person’s privacy and that there are less intrusive ways of enforcing drunken driving laws against unconscious motorists — getting a warrant, for instance, which in these tech-savvy days can be done relatively easily and quickly.
In 2013, for instance, the high court ruled that police violated the Constitution when they ordered a nonconsensual blood draw without a warrant in a routine DUI case. The vote then was 5-4, but two of the justices in that majority, Antonin Scalia and Anthony Kennedy, are no longer on the court.
The constitutional rights case produced four opinions — two concurring and two in dissent. In a break with his conservatives benchmates, one of those dissents came from Justice Neil Gorsuch.
The opinions reflect a deep divide over an essential question: whether the Wisconsin case should be decided on the basis of implied consent or on the question of what kind of emergencies allow for an exception to Fourth Amendment protections.
In his concurring opinion, Thomas wrote that because the evidence of alcohol in drivers’ blood will dissipate over time, states can invoke the “exigent-circumstances doctrine” on that basis alone to allow police to order a blood test without a warrant. Explaining why he took a stand apart from Alito’s plurality opinion, Thomas wrote that it “adopts a rule more likely to confuse than clarify.”
Alito’s concurring opinion agreed that speed is vital in obtaining blood-alcohol evidence. But he also said that the demands on police officers’ time contribute to creating exigent circumstances that allow an exception to warrant requirements — especially if an unconscious motorist has caused a crash. And he noted that police usually take such drivers to the emergency room — removing their chance of administering a breath test at the police station.
“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,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”
Discussing the emergency conditions created by unconscious drivers, Alito said that “forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies,” he wrote, in an opinion that was joined by Breyer, Kavanaugh and Roberts.
Twenty-eight states have laws similar to Wisconsin’s. The case, Mitchell v. Wisconsin, was accepted by the court at the start of this year, amid sharp divisions among state appellate courts over whether the blood draws violate motorists’ Fourth Amendment rights.
The case, which was argued in April, involved a man named Gerald Mitchell who was found by police near his van along the shore of Lake Michigan. One of Mitchell’s neighbors had called police to report that he was drunk and suicidal, and that she had watched him get into his van and drive away.
After police found him walking near the lake, they administered a breath test and then drove him to a hospital for a blood draw. Mitchell passed out in the car, and by the time the group arrived at the hospital, he was unresponsive. At that point, police ordered hospital personnel to draw a blood sample. After that test showed his blood alcohol content to be 0.222% roughly 90 minutes after his arrest, Mitchell was charged and convicted of driving while intoxicated.
When he lost in the Wisconsin state courts, Mitchell appealed to the Supreme Court, contending that the blood-draw violated his constitutional right to be secure in his person unless intrusion is authorized by a warrant.
In separate dissents, Justices Gorsuch and Sonia Sotomayor said the majority had erred in deciding the case on the grounds of exigent circumstances, rather than through an analysis of Wisconsin’s implied consent law — the statute they say the state was actually seeking to test.
Sotomayor emphasized that in lower courts, Wisconsin officials admitted there had been time to get a warrant — but they said the step wasn’t needed because of implied consent.
“Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”
Sotomayor was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
In his terse one-page dissent, Gorsuch said the case should have never risen to the Supreme Court in the first place.
“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute,” Gorsuch wrote. “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.”
Addressing those criticisms, Alito said the Wisconsin Supreme Court had allowed for a broader view of the case.
Wisconsin Attorney General Josh Kaul issued a statement in which he welcomed the ruling.
“This law helps protect communities from impaired drivers,” Kaul said. “We are pleased that the U.S. Supreme Court has upheld a Wisconsin law that promotes public safety.”