Under Wisconsin law, anyone who drives on the state’s roads is assumed to have consented to have his blood tested for alcohol and drugs. The state’s laws also assume that a driver who is unconscious has not withdrawn that consent. Today – in a rare afternoon session – the Supreme Court heard oral argument in a challenge to the constitutionality of the provision allowing a blood test of an unconscious driver without a warrant. After an hour of debate, it wasn’t entirely clear how the justices might rule.  But unlike the morning’s argument in the dispute over the decision to add a question about citizenship to the 2020 census, it seemed possible that the court might not divide completely along ideological lines, with Justice Stephen Breyer at times appearing to side with the state.

The case was brought to the Supreme Court by Gerald Mitchell, whom police found wet and shirtless on a beach in Wisconsin six years ago. When Mitchell – who was slurring his words – told police that he had parked his car because he “felt that he was too drunk to drive,” police did a preliminary breath test, the results of which are not admissible in court: Mitchell’s blood-alcohol level was three times the legal limit of .08 percent.

Mitchell was placed under arrest, but he was so drunk that police decided to take him to the hospital for a blood test instead of doing another breath test. By the time Mitchell arrived at the hospital, he was unconscious. Hospital staff took a blood sample, which registered a blood-alcohol concentration of 0.222 percent, and Mitchell was charged with driving while intoxicated.

Arguing for Mitchell at the Supreme Court today, lawyer Andrew Hinkel characterized the state’s argument as a “bold and novel proposition.” The state shouldn’t be able to get around the general requirement, imposed by the Fourth Amendment, that a warrant is required for a search simply by passing a law indicating that residents of the state have consented to the search. If the law at the center of this case is upheld, Hinkel warned, there is no reason why similar consent laws couldn’t be enacted for other searches — for example, to allow police to search your cellphone if they pull you over.

Chief Justice John Roberts didn’t necessarily see a problem with Hinkel’s example. It’s “not horrendous” to look at whether someone was making a cellphone call when he ran someone else over with his car, Roberts suggested. Roberts returned to this point later, telling Hinkel that his “parade of horribles doesn’t seem to me to be that persuasive”: Even if states use consent laws like this one, Roberts posited, there is no reason to believe that they will try to go further and exploit a loophole to say, for example, that everyone consents to a search just by walking on the sidewalk.

Justice Samuel Alito also appeared skeptical about whether the Wisconsin laws violate the Constitution. He noted that, although Mitchell portrayed them as consent laws, “maybe what they’re really about is attaching a condition to the privilege of driving,” which “is a very dangerous activity.” “What,” Alito asked, “is wrong with that?”

Hinkel emphasized that the state has other ways to catch and punish drunk drivers, most notably by getting a warrant.

Alito was unconvinced. It’s easy to say you can get a warrant, Alito told Hinkel. But is it really that easy at 2 a.m. on Christmas morning? And more broadly, what purpose is actually served by getting a warrant in a case like this?

Breyer chimed in, noting that if a suspect is unconscious, police officers are probably going to take him to the hospital anyway. And once he’s there, Breyer continued, hospital staff are probably going to do a blood test. Why isn’t it reasonable, Breyer asked, to say that police can use the blood without having to get a warrant?

Breyer quickly changed his tune, however, when Hannah Jurss, the Wisconsin assistant attorney general who argued on behalf of the state, made a very similar point. When a driver drinks so much that he passes out, Jurss said, medical care will almost always involve a blood test, and there is little to be gained from requiring police to get a warrant.

Breyer retorted that if police want to use blood from the blood test as evidence, they should get a warrant. All police need to do, he suggested, is make a phone call, which doesn’t interfere with any medical treatment that the driver might be receiving.

Justice Ruth Bader Ginsburg seemed to agree. If you want to seize blood or anything else, she emphasized to Jurss, you should get a warrant – no exceptions. Ginsburg asked Jurss to explain how difficult it is to get a warrant in Wisconsin. We’re told, Ginsburg said, that judges are often standing by, so that the process frequently takes as little as 15 minutes.

Justice Elena Kagan focused on whether Mitchell had actually consented to have his blood drawn. There isn’t anything to indicate that Mitchell understood the choice he was making, Kagan told Jurss. If he had signed something at the Department of Motor Vehicles, Kagan suggested, the situation might be different. She returned to this point again a few minutes later, telling Jurss that the implied-consent laws normally work “fine” because most drivers are conscious. But the choice between consenting or losing one’s license falls apart, she contended, with an unconscious driver, because an unconscious driver can’t really consent to have his blood drawn.

By the time Hinkel stood up for his rebuttal, it seemed as though Breyer might have come around to the state’s point of view again. He told Hinkel that his position seemed like a “bureaucratic” set of rules that “will confuse people, achieving no real purpose.”

Justice Brett Kavanaugh was also unsympathetic to Mitchell, asking Hinkel why the blood test couldn’t be exempt from the warrant requirement as a special category for emergency situations in which someone is unconscious.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

Posted in Mitchell v. Wisconsin, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument analysis: Justices debate warrantless blood draw for unconscious drunk driver, SCOTUSblog (Apr. 23, 2019, 5:11 PM), https://www.scotusblog.com/2019/04/argument-analysis-justices-debate-warrantless-blood-draw-for-unconscious-drunk-driver/