Can Cops Draw Your Blood While You're Unconscious? Divided Supreme Court Says Maybe

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By Christopher Coble, Esq. on June 28, 2019 8:09 AM

When Gerald Mitchell was arrested on suspicion of driving under the influence, his field breathalyzer test was triple Wisconsin's legal limit. And when officers drove him to the station for a more accurate breath test, he passed out. So, they then drove him to a hospital, where staff drew his blood while he was unconscious and confirmed he had a 0.222 blood alcohol concentration.

Mitchell challenged the blood test evidence all the way to the Supreme Court, and lost. Sort of. While the Court generally ruled that police can order a blood test of an unconscious person without a warrant as part of a DUI investigation, they may have left one exception in Mitchell's case. Here's what you need to know.

Implied Consent

Wisconsin, like most states, has implied consent laws under which motorists consent to field sobriety tests and chemical tests to determine impairment as a condition for obtaining a driver's license. If a person refuses the tests -- or withdraws their consent -- their license can be revoked. But under Wisconsin's law, "[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have" withdrawn it. While Mitchell originally challenged Wisconsin's law itself as a violation of the Fourth Amendment, the Supreme Court found other grounds on which to decide the case.

Exigent Circumstances

While the Fourth Amendment generally requires police to obtain a valid search warrant, and the Supreme Court affirmed that blood draws in DUI cases constitute a search under the Fourth, there are exceptions to the warrant requirement. One such exception, known as "exigent circumstances" applies in emergencies, or where the destruction of evidence is likely or imminent. In this case, that exception generally applies, according to the Supreme Court:

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.

Exceptions to the Exceptions

But that didn't mean Mitchell himself was out of luck. "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 BAC information," the Court noted, "and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties." So Mitchell will have the opportunity to argue both of those points at the lower court level.

And the Court was far from unanimous: only four justices agreed on what would become the majority opinion, while one would have reached the same result based on different reasons and the four others would've gone the other way.

So the issue of if, and when, police can force blood to be drawn from an unconscious DUI suspect is not quite settled. If you've been charged with a DUI, contact a local attorney immediately.

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